The OLC memo on Whitaker says that he is not a principal officer, because he is either an inferior officer or not an officer at all. I have addressed before that the Acting AG cannot be an inferior officer, because he is a department head, and the Constitution tells us that a department head is a principal officer.
In one of the most helpful posts on this whole debate, Mary Lederman and Walter Dellinger offer a footnote with a helpful analogy:
Will Baude suggests that “as a matter of text and structure,” it appears that a President can’t name an “Acting” Attorney General without Senate confirmation because “[o]n 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.” That conclusion may or may not be correct, but we aren’t convinced it follows naturally from the “text and structure” of the Appointments Clause itself–because it begs the question at hand, namely, whether the person temporarily performing the office’s functions “occupies” (or holds) that office. Think, for example, of a school district that requires the superintendent to approve of a principal’s hiring of all teachers, but that also permits a school principal unilaterally to hire persons to fill in for such teachers in the event of an unexpected “vacancy,” e.g., illness, vacation or removal. Of course we call such “transient” replacements “substitute teachers”–and we don’t usually think of them as occupying or holding a school “office” or position in the way we think of the “permanent” teachers–of holding the position of “teacher.” They’re simply filling in, and that’s why it’d be unremarkable for the school board to prescribe a different, somewhat less formal and less trustworthy manner of hiring them (i.e., without the approval of the superintendent) than it does for “permanent” teachers.
I think this analogy is helpful, but I think it misses the appropriate level of office here. It is odd to analogize the attorney general/acting AG to the teacher/sub, rather than to the school principal/”acting principal.”
Is a substitute teacher an “officer” of a school? No, but I’d suggest that’s because teachers are not “officers” of schools. “Officer” has a connotation of supervisory power over an institution. Teachers “supervise” students, but in this analogy, the relevant kind of power is the power to hire and fire. School teachers don’t really have that power. A school has a limited number of people who serve as officers. The list of school officers does not include their full faculty.
So let’s consider the more analogous officer to an attorney general serving under a president: a school principal who serves under a superintendent. Schools often have acting principals. One of my children has an acting head of school for the entire year. Acting principals can serve for shorter periods during illness or parental leave. An acting principal has the power to hire and fire and make other major institutional decisions. An acting principal is surely an officer of the school, even if temporary.
And the relevant time period here for an Acting AG is up to 210 days, about the length of a school year, much like an acting principal. Whitaker’s length of service is over two weeks with no sign of being replaced — the length of time in which one might need an acting school principal. He is an officer.
So my concern with the analogy above is that the work in the analogy is done not by the word “sub,” but is being done by the word “teacher.” And it is perhaps no linguistic accident that we use the word “principal” for both the head of a school and the head of an executive department… acting or permanent. It’s not the permanence, it’s the power of the office.
Our constitutional scheme has four layers: president, principal officer, inferior officer, and employees. Employees “are lesser functionaries subordinate to officers of the United States”).Buckley v. Valeo, 424 U.S. 1, 126 n.162 (1976) (per curiam). As a teacher myself, it is hard to admit that I am a lesser functionary, but it’s true. I am no “officer” of my law school or university, even if I can hire and fire a research assistant. My dean and associate deans are the analogous officers. University presidents and superintendents are the chief executives. School principals and deans are the principal officers. Vice principals and associate deans are inferior officers.
So the bottom line is that school principals, acting or permanent, are the analogous officer to an attorney general, acting or permanent. And when the framers understood those powers of principals, they required Senate confirmation.