Matthew Whitaker is unfit to serve as acting U.S. attorney general. The Appointments Clause of Article II, section 2, clause 2 prohibits his appointment by President Donald Trump without Senate confirmation. Therefore, every action taken by Mr. Whitaker sits under a legal cloud, including domestic and foreign electronic surveillance warrants.
Mr. Whitaker’s appointment exemplifies life imitating art. Prior to his meteoric ascent to Acting Attorney General at age 49, Mr. Whitaker owned a daycare center, a concrete supply business, and a trailer manufacturer. He spearheaded an endeavor to build affordable housing in Des Moines with government subsidies. His ultra-thin credentials for serving as Acting Attorney General hearkens back to a stanza in Sir Joseph Porter’s song in H.M.S. Pinafore:
“Now landsmen all, whoever you may be,
If you want to rise to the top of the tree,
If your soul isn’t fettered to an office stool,
Be careful to be guided by this golden rule —
Stick close to your desks and never go to sea,
And you all may be rulers of the Queen’s Navee.”
The infinitude of legal ignorance Mr. Whitaker brings to his position is disqualifying. He deplores the power of judicial review as proclaimed by Chief Justice John Marshall in Marbury v. Madison (1803), i.e., the authority of the United States Supreme Court in adjudicating concrete cases or controversies to invalidate actions of Congress, the Executive Branch, or the States for violating the Constitution.
In a question and answer interview when he sought the nomination of Senator in Iowa in 2014, Mr. Whitaker asserted: “There are so many ‘bad [Supreme Court] rulings. I would start with the idea of Marbury v. Madison. That’s a good place to start….”
Judicial review is to the rule of law what the Ten Commandments are to Judaism or Christianity. Without it, Congress, the President, and the States would decide the lawfulness of their own acts. They would be judges in their own cases.
The consequence of his role as AG, acting or otherwise, would be alarming to both liberals and conservatives. Flag burning or criticizing government would be a crime. The individual right to bear arms would be toothless. Separate but equal would flourish. Indeed, the protections of the Bill of Rights would depend on the outcome of elections. President Richard Nixon would have destroyed the tapes that proved obstruction justice and occasioned his resignation. President William Jefferson Clinton would have refused depositions in the Paula Jones litigation and the Ken Starr investigation, which triggered his impeachment for perjury and obstruction of justice. Without judicial review, the law would be no more than a jumble of political calculations with ulterior motives.
That is why Justice Antonin Scalia, lauded by President Trump, testified at his Senate confirmation hearing:
“…Marbury is of course one of the great pillars of American law. It is the beginning of the Supreme Court as the interpreter of the Constitution…As I say, Marbury v. Madison is one of the pillars of the Constitution. To the extent that you think a nominee would be so foolish, or so extreme as to kick over one of the pillars of the Constitution, I suppose you should not confirm him.”
Chief Justice William Rehnquist praised Marbury as “the linchpin of our constitutional law. Associate Justice Brett Kavanaugh, appointed by President Trump, heralded Marbury as “among the four greatest moments in Supreme Court history.”
Mr. Whitaker decries Marbury as one of the Court’s many “bad rulings.” At the same time, the Acting Attorney General berates the Court for neglecting to employ its power of judicial review (which he believes it should not enjoy) to nullify New Deal legislation expanding the power of the federal government, including Obamacare. His intellectual arabesque recalls F. Scott Fitzgerald’s memorable quote from The Crack-Up: “The test of a first rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function.”
Article VI, section 1, clause 3 of the Constitution provides that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”
In the Christian conservative Family Leader debate in 2014, as he was campaigning to capture the Senate nomination in Iowa, Mr. Whitaker elaborated that in assisting the confirmation of judges:
“I’d like to see things like their worldview, what informs them. Are they people of faith? Do they have a [New Testament] biblical view of justice?—which I think is very important. And what I know is as long as they have that worldview, that they’ll be a good judge. And if they have a secular worldview, then I’m going to be very concerned about how they judge.”
The First Amendment also protects the free exercise of religion. In Torcasco v. Watkins (1961), the Supreme Court declared unconstitutional a requirement that persons declare a belief in the existence of God as a condition of holding public office.
Mr. Whitaker, however, has declared that judicial nominees should be vetted based on whether they have a New Testament biblical view of justice.
In sum, he is no more fit to serve as acting attorney general as would be an atheist to serve as the Pope.
Moreover, the Appointments Clause requires Senate confirmation of all principal officers of the United States. At a minimum, an officer like the Attorney General who reports directly to the President is a principal officer.
The reason for Senate confirmation underscores the unconstitutionality of President Trump’s unilateral appointment of Whitaker. Alexander Hamilton elaborated in Federalist 76:
“It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature…He would be…afraid to bring forward… candidates who had no other merit than that… of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”
Mr. Whitaker’s sole merit is an eagerness to place loyalty to President Trump above fealty to the Constitution he is sworn to uphold and defend. Mr. Trump has repeatedly emphasized that he wants an attorney general who will protect him like Bobby allegedly did for brother John and Eric Holder allegedly did for Barack Obama. Mr. Whitaker fits the bill, which is why the Senate would vote against his appointment.
Mr. Whitaker was appointed under the Vacancy Act for up to 120 days. A statute, however, cannot trump the Constitution, not to put too fine a point on it. The appointment has already been challenged as unconstitutional in litigation over the Affordable Care Act. No person prior to Whitaker has ever served as Acting Attorney General without prior Senate confirmation to some position in the Department of Justice. Congress has provided by statute separate from the Vacancy Act that if the Office of the Attorney General is vacant, “the Deputy Attorney General may exercise all the duties of that office.”
If the Whitaker appointment succeeds, the Senate’s confirmation prerogative could be easily evaded. The President could first obtain Senate confirmation of nominees with glittering credentials, and then immediately fire them and fill the vacancies created with non-confirmable sycophants for up to 210 days. The process could be repeated ad infinitum. The Appointments Clause, however, is made of sterner stuff.
Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan and counsel to the Joint Congressional Committee on Covert Arms Sales to Iran. He is a partner in the law firm of Fein & DelValle PLLC.