The OLC’s Whitaker problems, big and small: Article II, selective textualism, Department Heads, and historical cherry-picking

I’ve been criticizing the large and small errors in the OLC memo supporting Whitaker’s appointment. I started last week by pointing out a significant error (or at least a significantly misleading passage) in the OLC’s memo on the relationship between statutes.

I want to highlight a bigger set of problems methodologically about the constitutional argument in terms of its inconsistent methods, its failure to consider originalism while somehow sliding into living constitutionalism, its failure to consider purposes and context (both for constitutional arguments and for statutory arguments), its shading of the historical evidence in favor of its preferred outcome, and its overlooking serious problems based on the Constitution’s text.

[Update: I have to emphasize up top how remarkable it is that the only precedent the OLC provides for an unconfirmed Acting AG is 1) from 1866, 2) for just a week 3) under the chaotic Andrew Johnson, 4) who is infamous for flouting the Senate and was nearly impeached for it, 5) before the AG was even a department head, because the DOJ did not yet exist, and 6) that distinction is constitutionally significant. (OLC p. 11) But there is more in terms of its selective interpretation of the 19th century, too. I also note there is good reason the early republic may have treated AGs differently from other cabinet officers. The Attorney General historically has been understood as a different kind of executive officer, a “quasi judicial officer” from the mid 19th century and on. I also show that AGs were treated differently from other cabinet members. My draft paper addresses this.]

1) The OLC is methodologically incoherent and inconsistent. The OLC uses narrowly textual arguments on the Vacancies Reform Act [VRA] statute, when the legislative history and purposes raise significant questions. This textual approach has many adherents, but the problem is that in the constitutional section, the OLC then suddenly abandons any textualism — and avoiding any originalism or purposivism — and flips to solely post-ratification history, focused mainly on the 20th and 21st century history. It’s not really post-ratification “liquidation.” It looks more like living constitutionalism. I thought that was not allowed.

2) It turns out that this is all very convenient. Anyone who studies the VRA acknowledges that it’s a mess. Even if the text may appear to give discretion to a president to appoint non-confirmed acting officers, this is hardly clear from the text. And as Marty Lederman and Walter Dellinger observe in the best overall review of the OLC memo, the VRA has a strange deletion from a draft that demands some explanation. Context, purposes, and legislative history are the way to address those gaps and puzzles. And those purposes offer contrary evidence from the Republican Senate’s goal of limiting presidential discretion during Clinton’s administration – yet there is no discussion of purposes or legislative history.

Yet once the OLC pivots to the constitutional question, it deals almost exclusively with post-Ratification historical practice or Supreme Court precedent. The only section to acknowledge an originalist argument against its pro-Whitaker position is Justice Clarence Thomas’s concurrence in SW General. But instead of engaging Thomas’s originalism, it converts the point to a narrow reconciling of precedents.

Meanwhile, the most basic check of the Federalist Papers produces this passage on the importance of Senate confirmation from Alexander Hamilton, No. 76:

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

Read the whole thing here. This is unfortunate and an indication of a deeper problem: The OLC cherrypicks its methods and its history in order to reach a political result. More on that below and in future posts.

3) THE CONSTITUTIONAL TEXT: The most puzzling problem to me is how the OLC simply mentions the text of the Constitution in passing – and never analyzes it.

Let’s review Article II, Section 2:

Section 2

1: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

3: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

So let’s review: The Constitution creates categories of principal and inferior officers. But overlooked in the debate so far: the Heads of Departments/the principal officer in each department, an important subset of principal officers with special powers and duties under the Opinions clause. To whatever extent “principal officer” is ambiguous, “the principal officer in each of the executive departments”, i.e., “the heads of departments” is clear and distinctly more power.

The Supreme Court’s rough distinction in Edmond (1997) is:

“[I]nferior officers” are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate… “inferior officer” connotes a relationship with some higher ranking officer or officers below the President: Whether one is an “inferior” officer depends on whether he has a superior.

No one disputes that the Attorney General is a principal officer. But the OLC claims that an “Acting” Attorney General is not a principal officer because he is temporary. (Yet the OLC does nothing to assure the temporariness). And it doesn’t address how an Acting AG is not still the head of the DOJ.

Others have made the point that the Constitution does not contemplate such an “acting” appointment to a principal office. It provides for the problem of congressional recesses with recess appointments, but otherwise, principal offices require Senate confirmation. The “acting” office is an extra-constitutional office. Any Congressional creation of an “acting” Attorney General without Senate confirmation as AG is in itself a stretch of the Constitution’s text. More on that below.

The Supreme Court has tolerated such an exception only “for a limited time and under special and temporary conditions,” e.g., in an emergency in Siam (Thailand) when the consul fell ill… in 1898. (Eaton). Much of the debate has emphasized that the Sessions resignation was no sudden unforeseen emergency, not exogenous contingency, but created by the president himself, and without any sign that it is actually limited or temporary.

However, the OLC – and most of the debate so far – has overlooked that the Constitution’s text tells us that there is another category, a special subset of principal officers identified in this text: “the principal officer in each Department,” i.e., the “Head of Departments.” This is an important subset of principal officers, and a close textual reading tells us to treat that subset as a special category.

Even if the precise line between principal and inferior hasn’t been clear, and even if the Court has offered some flexibility for some principal officers, the Constitution’s text gives special duties and powers to the Head of Departments. Those special features from the text should be acknowledged. One can make an argument that “Heads of Departments” are so important that vacancies are a more urgent problem, and require an exceptional circumstance, an acting head. I think the opposite argument is stronger: 1) a department tends to have greater powers than lesser agencies or isolated overseas officers; 2) a department is far more likely to have a team of deputies and assistants – many of whom are Senate-confirmed – with a clear order of departmental succession; 3) a Head of a Department has special constitution roles and duties in the Opinions clause.

There can be reasonable arguments on both sides. But one basic point is that the OLC missed this distinction because it did not carefully analyze the Constitution’s text. Isn’t that where constitutional analysis is supposed to start? And it also didn’t take original public meaning seriously, because it would have engaged with these questions, too.

4. Historical examples from the 19th Century:

The lack of textual and historical detail also led the OLC to miss or misinterpret evidence. First, the OLC acknowledges that the Department of Justice did not exist until 1870, so the Attorney General did not “supervise an ‘executive department'” until 1870 (p. 12). But the OLC memo does not acknowledge the constitutional significance of this distinction. The AG office became a constitutional-textually and functionally more significant office in 1870. The AG did not supervise US Attorneys or many other officers at all before 1870. Congress created of the DOJ in 1870, as I wrote in this 2014 article, primarily to make the role of government lawyers more professional, less political, and less partisan – so the Whitaker appointment betrays those goals. To be honest, most presidents over the 20th century did, too, as I wrote here. But significantly, Congress transformed the office of Attorney General from a roughly part-time advisor to a department head supervising

Nevertheless, despite these dramatic historical changes in 1870 the OLC still emphasizes examples of pre-1870 acting attorneys general who had not been confirmed by the Senate. The particularly underwhelming example is J. Hubley Ashton, who served for one week in 1866 (p. 12). Because Ashton was never a “Head of a Department,” this example is distinguishable constitutionally. I cannot find an example in the OLC memo of an acting AG after 1870 — once the AG first became a department head — who was not confirmed by the Senate.

So let’s be clear: [updated: The OLC failed to identify a single] acting Attorney General as head of the DOJ who had not been confirmed by the Senate for some office. But the OLC did not acknowledge that fact.

But the OLC still tried to overstate its case for the period before 1870. The OLC writes, “In other instances, however, non-Senate-confirmed individuals served.” Interesting use of plural. Guess how many instances the OLC actually cites? One. So how does the OLC justify this creative plural grammar? They drop a footnote claiming, “This list is almost certainly under-inclusive because published sources we have located idenitify only those who were Acting Attorney General during a period of resignation” and not temporary unavailability due to “sickness or absence.”

They might be right, but my goodness, that’s quite a leap. They don’t find evidence, they simply assume it. They’re likely right, but keep in mind that the OLC gets to imagine that plural assumption by assuming the existence of totally distinguishable examples. You cannot find precedents for Whitaker’s appointment from cases of “sickness or absence,” unless you are really desperately looking and stretching. In the end, the OLC found one example of an unconfirmed acting AG… for six days in 1866… before there was a department. And it used the plural anyway.

But here’s another remarkable twist in the OLC’s survey: it never occurs to the OLC lawyers that they actually found a dramatic piece of evidence against their case. They find that, though presidents named temporary non-Senate-confirmed acting heads to other department heads, there are almost no examples for Attorney General, and NONE after the Attorney General became a department head in 1870:

Between 1809-1860 (OLC memo, p. 10):

Secretary of State: 51 times

Secretary of Treasury: 36 times

Secretary of War: 22 times

Attorney General: Once.

And just for 7 days, almost a century after the Founding, and not even as head of a department. This is evidence that cuts the opposite way from the OLC’s argument.

So the OLC found something important, but it tried to bury this fact: Presidents and Congress appear to have treated the Attorney General as an office inappropriate for unconfirmed acting officers! It seems to have been a special office for which non-Senate-confirmed officers are ineligible, with one tiny exception during the chaotic Andrew Johnson administration which generally flouted the rule of law. The OLC finds just one example for six days in 1866, compared to 22, 36, and 51 times in the other major cabinet positions. I guess that inconvenient fact did not fit the OLC’s theory.

And this lack of historical detail – and lack of transparency – leads to a second error, caught by Lederman and Dellinger, relating to the significance of the 1870s and working out the new Department of Justice. The OLC failed to acknowledge 125 years of Congressional intent to keep the DOJ specifically outside of the general Vacancies statutes provisions:

“What OLC doesn’t mention is that the 1873 reconciliation pointed in exactly the opposite direction of OLC’s current reading of the two vacancies statutes:  Faced with virtually the exact same question presented by the 1868 and 1870 acts, the codifiers read the word “shall” in the AG-specific statute to supersede–not merely supplement–the general authority that the Vacancies Act conferred on the President.  (In its later recodification in 1966, Congress again expressly ratified that the Vacancies Act doesn’t apply to vacancies in the office of Attorney General.)  This historical data point tends, if anything, to undermine OLC’s view about how best to reconcile the two current vacancies provisions, which take similar forms to those enacted in 1868 and 1870.”

So that’s a lot of 19th century historical oversights, to put it generously.

5. OLC’s living constitiutionalism: Emphasizing historical evidence from the late 20th-21st Centuries, but nothing on Original Public Meaning.

I’m confused. I keep hearing that original public meaning is the key to Constitutional interpretation, and frankly, I agree. I consider myself an originalist, at least in the same way Justice Scalia and his followers were. Scalia called himself a “faint-hearted originalist,” because original public meaning was the most important consideration, but not the sole consideration. If Scalia and many originalists can make a case for Brown v. Board of Education and their takings jurisprudence, I can make a case for robust privacy rights, sex equality, etc. But I digress.

The point is that it is unclear why the OLC emphasizes the late 20th century and early 21st centuries for three pages (p. 16-18) and spends zero pages on original public meaning. No mention of the Federalist Papers No. 76, which has a lot to say about this question. It is striking how often this section mentions the name “Obama” (at least five times), as well as George W. Bush. This seems to be more whataboutism than constitutional analysis.

As far as I can tell, it mentions the Federalist Papers zero times. The one time it mentions Alexander Hamilton? A reference to his son James’s appointment for three weeks to State during Andrew Jackson’s administration. That’s not originalism. That’s mid-19th century cherrypicking.

So what if we are more charitable and say that the OLC suddenly discovered living constitutionalism? Then they still have the argument backwards. The 1790s and the first half of the 19th century had a better case for such flexibility in “acting” appointments as a matter of necessity, compared to now:

  1. Travel and communication. If an emergency occurs anywhere in the world, the officers can let the White House know immediately. Then the president can contact potential replacements, have them travel to DC for confirmation, and then travel to fill the office.
  2. The departments were small then, but bigger now. The DOJ exists now, for one thing. But more generally, departments have a larger number of Senate-confirmed deputies and assistants, so there is less of a need – maybe no need – to dig into the unconfirmed ranks for any department head.
  3. Unlike the 19th century or even most of the 20th century, the Senate is almost always in session. This reduces the need for vacancy appointments and increases the availaibility of Senate confirmation.

6. Constitutional flexibility and constitutional avoidance

Will Baude wrote recently:

1. If you asked me to consider this purely as a matter of text and structure, I doubt that the President can name an “Acting” Attorney General without Senate confirmation (or a recess appointment — which is unavailable here). On any given day, the office of Attorney General is a “principal” office, so it should require a principal appointment, one with Senate confirmation, to occupy that office even for a day.

Now Baude, as many who follow his insightful approaches to constitutional interpretation, does not think that text and structure are the end of the story. He emphasizes Madison’s “liquidation” approach, and this topic is a great example of liquidation: the practice of the early Republic fleshes out the text.  I argue above that the early republic sometimes presents the opposite effect: the Constitutional text presents an idea design. The early republic, due to chaos, practical challenges of space, and simply the problems of any start-up, fall short of the ideal design, but can better fulfill that ideal as time passes and institutions survive the initial bumps and reach maturity.

Nevertheless, Baude makes an important point. Based on text, structure – and I’d add original purposes, any “acting” principal, and especially any acting Head, is a significant stretch. (Again, I note that a “Head of a Department” presents a stronger textual problem on top of the one Baude identified for just any principal officer.)

And when a statute runs into a potential constitutional conflict, interpret the statute narrowly to avoid constitutional problems. This situation was no emergency, no special circumstance. One might also invoke the president’s duty to “take care that the laws be faithfully executed” and the oath to “faithfully execute the office,” based on centuries of use before 1787-88, as a bar to such faithless self-protective appointments to undermine the rule of law.

There are various solutions to minimize that problem of stretching the constitutional text for principal officers and especially acting heads of departments:

  1. Rule that any “acting head” officer is unconstitutional, and have Congress find ways to delegate tasks to deputies and assistants in order to peform the department’s necessary tasks. If a statute requires an Attorney General and only an Attorney General to perform a particular task, then those tasks will need to wait, or Congress can amend those statutes to re-delegate.
  2. Rule that any “acting head” is permissible only if there are significant functional limits on his or her power, more than just being temporary. We are all temporary in this world. Any AG is temporary. As long as the acting AG serves as the functional head of the DOJ, he or she is a principal officer. There must be a more functional limit to turn an Acting AG into truly an inferior officer, not just a superficial change in labels as inferior.
  3. Rule that Acting AG must be very temporary. In order to have an Acting AG, there must be a pending nominee within a matter of days.
  4. Or in the very least, rule that any Acting AG must be a principal Senate-confirmed officer within the same Department. (It seems absurd that the Small Business Administrator could be AG or Secretary of State). If no Senate-confirmed officer is available in that department, only then might a president appoint a Senate-confirmed officer from another department. And even then, such an appointment might be a stretch too far.

Problem #7: Last big picture point: OLC stands for Office of Legal Counsel. It has a duty to provide legal counsel. Not just one-sided, narrow legal defenses. Government lawyers have a duty to give prudent legal counsel. The OLC had a duty to mention valid concerns or caveats, that even if a president could exploit a messy statute — with perhaps an accidental loophole created recently — to appoint an unconfirmed official, that this was not in the spirit of the statutes or the Constitution.

I believe that there were reasonable arguments on both sides of the debate. But the OLC simply offered too many errors, too many misleading passages, and too many failures to engage the text of Article II, the evidence of its original public meaning, and the clear counterarguments from its historical cherrypicking. It is more a brief written to support a desired political outcome than a judicious weighing of evidence, and that’s all the more disappointing considering what a shameful act the OLC is enabling.

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and American politics, and another project on the origins of independent agencies in America.

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