Attorneys General are Department Heads under Article II, and Should Be Senate-Confirmed

In its memo on the Whitaker appointment as Acting Attorney General, the OLC re-labels the Acting AG an “inferior officer” to avoid the Senate confirmation problem [or says that the acting attorney general is not an officer at all. More on that later]. The OLC asserts that the temporariness of the acting appointment makes him “inferior,” but time-boundedness has no relationship to the fundamental problem that comes directly out of the Constitution’s text:

  1. An Acting Attorney General is the head of a department, the DOJ, whether short- or long-term.
  2. A head of a department is plainly a principal officer as a matter of constitutional text.
  3. Principal officers must be confirmed by the Senate.

Each of these three steps is clear. The strong version of this textual argument is that there can be no such office as Acting Attorney General or any kind of acting head. Statutes might delegate many tasks of a department head to deputies and assistants, but there should be no unconfirmed acting department head of any kind under Article II.

The weaker version from this reading of Article II is that as long as Congress and the President have created an acting department head, that officer must be Senate-confirmed in some capacity, and probably limited to confirmed officers from that particular department, at least to mitigate the problematic constitutionality of this office as a matter of constitutional avoidance. [On this approach, I agree with Marty Lederman’s and Walter Dellinger’s analysis here, especially their point #2 under the Appointments Clause].

I started this analysis of the OLC’s memo and its misleading historical claims in this long earlier post. This present post is intended to be more focused on the constitutional merits, and it is meant to be more direct.

Let’s review the Constitution’s Article II, Section 2 (on the president and the executive branch):

1: The President … 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…

2: 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.

The relevant text is clear. Departments have “a principal officer.” Art. II, Sec. 2, Cl. 1 is the source of the phrase “principal officer” in the Constitution. There are other kinds of principal officers in the governemnt, but the paradigmatic principal officer is “the principal” one in each department. The next clause refers to those officers as “the heads of departments,” with a special appointment power – a tremendous power – as well as the powers and duties in the Opinions clause.

And such principal officers of executive departments must be confirmed by the Senate. Now, in the confirmation part of the clause, the Constitution does not say “principal officers,” but instead says “all other officers of the United States.”  Whatever ambiguity is in this clause cuts the other way: “all other officers of the United States” could be broader than principal officers, but the next part clause clarifies that this category does not include “inferior Officers.” So as a clear textual matter, we know that principal officers must be confirmed by the Senate.

And though there is still ambiguity about who else is included in this category of principal officer, there is no ambiguity that a department head is a principal officer. Article II tells us so.

[Update: The only exception for contingencies or sudden vacancies in the Constitution is recess appointment. So even when the Framers contemplated emergency, they offered a limited window. By implication, if there is no recess, there is no exception. Maybe the “necessary and proper” clause, but that seems like a stretch given limits of Appointments Clause, or at least narrowly tailor the uses to the truly necessary. The Whitaker appointment was obviously not necessary, given less constitutionally problematic options in the DOJ building.]

Instead of any of this textual analysis (or any original public meaning to deepen an understanding of the text, as Justice Clarence Thomas did in SW General – the OLC dismisses his point too summarily, merely harmonizing his objections with other precedent), the OLC only turns to historical and judicial precedent. Much of this interpretation is common law constitutionalism, maybe “liquidation” (see Will Baude on Madison), but it more often approaches living constitutionalism. (The OLC never offers a methodological statement, just a convenient grab bag, arguably inconsistent with its textualism in its statutory analysis of the VRA).

First, a point on “liquidation,” the process by which subsequent historical practice clarifies the meaning of a constitutional ambiguity. As Baude has explained, this process is appropriate only when the Constitution’s text is vague and ambiguous. (See Baude here on the VRA and here for a summary of Baude’s excellent article on Madison and liquidation.) I submit that Article II is not vague or ambiguous on whether a department head is a principal officer and whether a principal officer must be confirmed by the Senate. The only ambiguity here is whether an acting attorney general is in fact a department head. It seems obvious that he would be, and as I’ve noted before, the OLC offers not a single precedent for an acting AG – as department head – who had not been confirmed by the Senate in some capacity.

[In a previous post, I also highlighted Hamilton’s Federalist No. 76, which also weighs heavily against the Whitaker appointment. So original public meaning reinforces the textual clarity of the significance of Senate confirmation to prevent presidential abuses and “favoritism.”]

The strongest historical example in favor of the memo’s conclusion is the Vacancies Act of 1792 and subsequent practice. But even very early statutes cannot override the Constitution. And the OLC’s reliance on post-Ratification practice simply cannot trump the plain text of the Constitution. (Sorry).

The very first Congress passed the Judiciary Act of 1789, giving the Supreme Court original jurisdiction (Mandamus), despite text of Article III narrowly limiting SCOTUS original jurisdiction. The Marshall Court famously struck down that provision in Marbury v. Madison (1803). Keep in mind that if Chief Justice John Marshall were looking for any ambiguity or opening to allow Congress to expand jurisdiction, he could have found it in the “exceptions and regulations” clause of Article III:

Clause 2: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

I think Marshall was right not to expand “regulations” and “exceptions,” arguably limited to appellate jurisdiction, to allow Congress to create new kinds of original jurisdiction. But the point is that the First Congress could not simply ignore the plain text of the Constitution to create original jurisdiction for the Supreme Court.

An early Congress also passed the Alien and Sedition Acts of 1798, which violated the First Amendment. The Supreme Court didn’t strike down these acts, but they should have. And imagine if we allowed that statute to tell us that Congress today can in fact criminalize political speech, despite the First Amendment, because Congress made a huge constitutional mistake in 1798? An early Congress couldn’t just amend or repeal the First Amendment by statute.

SCOTUS overturned an act passed in 1812 because it violated the 5th Amendment. (Reichert v. Felps, 1868). Keith Whittington has documented another dozen early federal statutes that the courts invalidated, starting in 1794 and continuing in the early republic – cases that had been entirely overlooked in official accounts of judicial review – in this terrific paper.

And as long as we are looking to history to understand the Attorney General’s role, I’ve observed that the OLC’s history actually shows that over the first century, presidents did not treat the AG like other heads, because there were so many unconfirmed Actings in other departments, but only one case in 1866 for a week – when the AG wasn’t even a head yet because the DOJ didn’t exist until 1870! There is good reason that 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.]

The OLC’s approach of historical cherrypicking is wrong. It still cannot find a precedent for an unconfirmed head of the DOJ anywhere in American history. But even more importantly, the text of Article II is not vague: The heads of departments are principal officers. An AG, acting or not, is head of the DOJ. An Attorney General – a department head – must be confirmed by the Senate, notwithstanding contrary historical practice.

In the very least, courts should decide that to avoid or at least minimize the conflicts with Article II’s text, an acting “Head of a Department” must have been confirmed by the Senate to an office in that department.

7 pm Note: Marty Lederman helpfully observes that an Acting AG is a principal officer for the purposes of the Opinions clause in Art II and for the 25th Amendment (removing a president!), and is “head of a department” for appointing inferior officers. But, as the OLC contends, he is not a principal officer under the Appointments clause in how he gets appointed. This seems incongruous to me. The best reading is that an Acting AG would be a principal officer for all 4, not 3 of 4. If he can remove a president, he’s a principal officer.]

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 political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

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