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Whitaker is Unfit to be Attorney General, Acting or Otherwise

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 [1]. 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 [2] 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, [3] 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.

41 Comments (Open | Close)

41 Comments To "Whitaker is Unfit to be Attorney General, Acting or Otherwise"

#1 Comment By Whine Merchant On November 18, 2018 @ 10:05 pm

…but he is loyal, so what else matters? Just as John Dean.

#2 Comment By YourMom On November 18, 2018 @ 10:30 pm

Well Robert Mueller is also unfit if you’re throwing standards around.

#3 Comment By Fred Bowman On November 18, 2018 @ 11:09 pm

All Trump wants for anyone servicing in his administration is a bunch of “ass-kisser”. Any competency in the position they hold is not required. Of course, if Hillary Clinton was POTUS, her administration would be without doubt would probably adhere to the same standard as the Trump’s administration.

#4 Comment By polistra On November 19, 2018 @ 3:24 am

There’s nothing “unconstitutional” about his appointment. A president is head of the executive branch and can hire and fire all subordinates within the branch. That’s wildly obvious.

Whitaker may be a poor choice by Fein’s standards, but Fein isn’t president. If Fein wants to choose executive branch employees, he should become president.

#5 Comment By spite On November 19, 2018 @ 4:51 am

“Flag burning or criticizing government would be a crime”

That is a funny thing to say because that is precisely what the Mueller gang is using to charge Russians for, making memes about the US government (calling it “defrauding” the US government of all things). So before your get on your high horse of following the rule of law, start with the very people that are using lawfare under the guise of of the “rule of law”.

#6 Comment By John Gruskos On November 19, 2018 @ 8:23 am

“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.”

*With* judicial review, the Supreme Court becomes judges in their own case.

The American people, the States, Congress and the President are reduced to ciphers.

Absurdities like “gay marriage” are forced on the American people in defiance of the current US Constitution, and in defiance of all law and precedent, and most importantly in defiance of the traditions of the American people dating back to 1607, the traditions of the Anglo-Saxon people dating back to the days of Tacitus, the teachings of the holy Christian religion, and the universal practice of all humanity until extremely recently.

The alleged “checks” on the Supreme Court, amendment and changing the composition of the court via appointment, are insignificant, since they are almost impossible to implement.

The true check on the power of the Supreme Court is the willingness of the people, the States, Congress and the President to simply ignore the court when it oversteps its bounds – for instance, when congress outlawed slavery in the western territories 1862 in clear defiance of the Dred Scott decision.

#7 Comment By Ray On November 19, 2018 @ 8:31 am

“he wants an attorney general who will protect him like Bobby allegedly did for brother John and Eric Holder allegedly did for Barack Obama.”

Please. Nobody has ever credibly accused Barack Obama of wrongdoing while in office (or ever, to my knowledge). Say what you like about his politics, but the man is manifestly honest.

#8 Comment By BobS On November 19, 2018 @ 8:58 am

An “infinitude of…ignorance” would seem to be desirable when it comes to Trump staffing his administration- Ben Carson, Betsy DeVos, Ryan Zinke, Scott Pruitt, Rick Perry, Heather Nauert, Jared and Ivanka, …
Of course, none of them outshines Donald ‘Rake America Great Again’ Trump when it comes to ignorance.

#9 Comment By Reghan Scalgrinn On November 19, 2018 @ 10:05 am

Appreciate the insight on judicial review.
the evidence that he imposes a religious test for office is a stretch.

#10 Comment By Blueshark On November 19, 2018 @ 10:13 am

“There’s nothing “unconstitutional” about his appointment. A president is head of the executive branch and can hire and fire all subordinates within the branch. That’s wildly obvious.”

Sigh. Another one who thinks he knows what’s “constitutional” without ever having actually read the Constitution:

“[A]nd he [the President] 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.” US Cost. Art. II, s. II.

Get it? The President can appoint an officer of the United States (and cabinet members, including the AG, are universally acknowledged to be “officers”) only with the advice and consent of the Senate.

It’s a closer question as to whether the Constitution permits an interim AG without Senate consent. And the author of the article fails to touch on the question of whether the NVRA, under which Whitaker was appointed, can supersede the statute which determines succession to the position of AG in the DoJ, when the AG is unable to perform the functions of office. This is no minor question, for the purpose of the statute is to protect the independence of the AG (and DoJ) from precisely the kind of ploy that Trump is now attempting.

#11 Comment By J. Russ On November 19, 2018 @ 11:04 am

Not to worry about testifying Dirty Donny, what’s to lose, I’m sure Mueller already has you nailed on the relative minor daily felony perjury violations, compared to the plethora of actual major felonies.

#12 Comment By Comin’ Right Up! On November 19, 2018 @ 11:28 am

Garbage in our government like Whitaker, they do what they want. Big talk about patriotism, freedom, America, but all they do is enrich and/or empower themselves and their cronies. What do you expect from a New York politician like Trump? Corruption. Nepotism. Loyalist, bagmen, and mediocrities ruling the roost. Lawlessness. And that’s what we got.

Of course they treat the Constitution like toilet paper. They don’t even know what it means. Probably never even read it.

I voted for Trump, but I was so appalled by his betrayals and general sleaze that I voted this last time against my Trump bootlicker congressman. In 2020 I get to vote against my Trump bootlicker Senator, and against Trump himself, which is going to be a real pleasure.

#13 Comment By KD On November 19, 2018 @ 12:12 pm

Marbury just decided that the Supreme Court has authority to interpret the Constitution. Judicial Supremacy was a late 20th century invention, and contrary to any right thinking Jeffersonian Democrat.

Further, the fact that Whitaker doesn’t agree with some kooky Warren-era Court decision shouldn’t be disqualifying.

The question of whether the President can appoint a temporary acting Attorney General without Senate approval is an interesting question, but it generally happens any time you have a change in Executive. Have incoming American Presidents been wrong to appoint an AG prior to Senate Confirmation?

OMG, he is not a William J. Brennan clone, run for the hills!

#14 Comment By GTT On November 19, 2018 @ 12:39 pm

Yup, just another moron who questions judicial review.

“To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine, and one which would place us under the despotism of an oligarchy” (Thomas Jefferson, letter to William Charles Jarvis, September 28, 1820).

“The candid citizen must confess that if the policy of government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of an eminent tribunal” (Abraham Lincoln, First Inaugural Address, March 4, 1861).

#15 Comment By Rich On November 19, 2018 @ 12:44 pm

Is he less qualified than RFK?
RFK’s resume prior to AG:
– Assistant Counsel and then Chief Counsel to the Senate Permanent Subcommittee on Investigations (originally appointed by family friend Sen. Joseph McCarthy).
– Chief Counsel to United States Senate Select Committee on Improper Activities in Labor and Management.
– Brother’s campaign manager.

#16 Comment By EliteCommInc. On November 19, 2018 @ 1:24 pm

The suggestion that judicial review hold place without question and anyone who challenges it is bereft of a brain would include minds such Pres. Jefferson, author of the declaration and no small amount of philosophical understanding is derived from his thinking. Because the practice of judicial review is not expressly noted in the Constitution, it will remain a questionable practice.


“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.”

I am not sure you have this understanding correct. by religious test, I the charge is to a particular denomination. Nor could a religious test be the single factor. But what is clear is that one’s philosophy, which would include their religious beliefs be weighed in said appointments. The line severing one’s philosophy from their religious belief and practice is probably blurred for most people. What we have learned to do is stifle our reference to religious philosophy by cloaking in non-religious terms. The founders had a very healthy debate on this very subject for example, in the states of Georgia and South carolina 1788:



Further based on the statements referenced, this not a test of exclusion, b ut one of consideration. He does not say he would exclude a different view, but would have to considerate it differently — weighing one to the other by definition grants inclusion.

“And if they have a secular worldview, then I’m going to be very concerned about how they judge.” is not exclusionary. He is not at all contending he would bar said individual from consideration, interview, discussion, paneling etc —


Here’s the vacancy act and I think there is nothing barring the appointment and service for a period not to exceed 210 days without Senate consent or advise, even if the senate has disapproves of the appointment.

While a fan of Justice Scalia, I am loathe to may here, but a healthy discussion about judicial Review is not unwarranted. I am unclear how one could obtain redress against violations without it or resolve administrative constitutional issues of gridlock.

#17 Comment By Jason Keyes On November 19, 2018 @ 2:09 pm

One other point – the Federal Vacancies Act starts with a recitation of when it is applicable: when an executive officer dies, is incapacitated, or resigns. It does not say that the statute applies if the officer is fired by the President. Nominally, Sessions resigned, but even his resignation says it was at Trump’s request. Sessions didn’t really have a choice; he was fired, so arguably, the Federal Vacancies Act is not applicable.

#18 Comment By Fred55 On November 19, 2018 @ 3:04 pm

, 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.”

His appointment may be constitutional, but I wouldn’t want to be an atheist accused in a court where any of his appointees are judges.

#19 Comment By bkh On November 19, 2018 @ 3:24 pm

The idea of having the SCOTUS have the final say is silly. Neither of the other branches are actually obligated to follow any decision made. One of the big problems facing what is left of this broken government is the idea the SCOTUS has the final say. They have no real legislative power or enforcement power unless the other two branches allows it. Both sides of the political spectrum have given far too much power to the 9 mini dictators sitting on the court. Those mini dictators have no authority to levy taxes or pass a spending bill. None of them can command the military in anything. Both sides need to stop the courtroom BS and demand Congress get off their arrogant, god-forsaken asses and govern.

#20 Comment By anon On November 19, 2018 @ 3:29 pm

Sounds to me like Mr. Trump nominated the right guy. I hope he gets confirmed.

#21 Comment By Bill Meyer On November 19, 2018 @ 3:47 pm

Whittaker obviously engages in “bad think” according to Fein’s worldview by questioning the plain B.S. of judicial review. (Declared by the court, not by any true authority)

You honestly think the founders fought a war to have black-robed commies addressed as “Your Honor” rule the U.S. as the effective superior branch of government?

We should be ashamed to have permitted the study of constitutional law to be not what the constitution SAYS, but rather what the Supreme Court SAYS ABOUT THE CONSTITUTION…a very different kettle of fish indeed.

#22 Comment By Ken Zaretzke On November 19, 2018 @ 4:36 pm

Judicial review has a problem. In an age of moral dissensus, when no criterion of the “right answer” is available, moral issues such as abortion and SSM can’t be impartially decided on the basis of the Constitution or any other now criterionless standard.

The situation is much worse if value-pluralism is true.

Whitaker is willing to say there’s no there, there. Good for him.

Btw, what is Bruce Fein’s view of the plurality opinion in Planned Parenthood v. Casey? Does he agree with it’s stunning assertion of judicial supremacy?

#23 Comment By suzy000 On November 19, 2018 @ 4:52 pm

Loretta Lynch, Eric Holder, Sally Yates were more dedicated to serving the our Constitution than Pres. Obama? In whose world? Since we are beating up on Presidents for picking loyalty over qualifications, don’t just stop with Trump….keep going!! I don’t disagree that he may not be qualified but I didn’t hear much from the Conservative world about Clapper, Hillary, Samantha Powers, Susan Rice, Brennan, etc. Lisa Jackson and gina McCarthy both pushed Obama’s initiatives at the EPA. Were they more dedicated to the Constitution or Obama? They were all walking disasters breaking the law with spying, corruption, lying to Congress and so much more.

#24 Comment By Bill Smith On November 19, 2018 @ 5:57 pm

I’m more interested in Mr. Whitaker’s view on the 10th Amendment than any of this strained reasoning.

#25 Comment By Mary Casey On November 19, 2018 @ 6:34 pm

I was actually getting sick while reading many of the comments left by others! The worst thing is, trumps fans could care less about Law & Order! They care only that their “leader” gets his way!
What does that have to do with this incredible Country that you people are lucky, far beyond your understanding, to live in?
I’m sickened by the fact that his followers are so ignorant that they seem brainwashed! Let me tell ya, what you should do, is go to live in the Philippines or Russia for AT LEAST 5 years, and then let me know how much you like DICTATORSHIPS, bc that’s what Donnie boy wants to do here, and you clowns are so smug you’re ready to let him!
I feel sorry for all of you!!
You’re just jokes to him! He hates all of you, because he only loves Donnie!!!😂😂😂

#26 Comment By William Dalton On November 19, 2018 @ 6:35 pm

I have the highest respect for Bruce Fein, who would have been my choice to sit on the Supreme Court during the terms of office of the last three Presidents. However, I am doubtful of his questioning of the credentials of Mr. Whitaker to serve as Acting Attorney General of the United States. First, the Constitution doesn’t require Senate confirmation of anyone to any particular office in the Executive Branch, but to “Officers of the United States”, and the question of which Presidential appointees or Federal office holders would be “Officers of the United States” and therefore require Senate confirmation was left up to Congress. Indisputably, the Attorney General is one of those offices for which Senate confirmation is required. But that it is not the case for many, or most, other attorneys who work in the Justice Department. In fact, I believe that Senate confirmation is required only down to the level of Assistant Attorneys General. Those below that level are appointed by the Attorney General, rather than by the President, and do not require Senate confirmation. One such office, apparently, is that of Chief of Staff to the Attorney General, which office Mr. Whitaker has held for more than a year, and which put in as logical position as most for the President to name him “Acting Attorney General”, an office which by its temporary nature does not require Senate confirmation. However, even if the argument is made that for anyone to be named “Acting Attorney General” the rationale behind the confirmation requirement dictates that they have held some office in which they did receive the Senate’s approval is also met in Mr. Whitaker’s case, as he was nominated and confirmed to serve as a United States Attorney in Iowa under President George W. Bush, an office which does require Senate confirmation.

As for Mr. Whitaker’s drawing a quarrel with Marbury v. Madison, before judgment can be drawn upon the lawyer’s competence for doing so, it is necessary to determine what the nature of his quarrel is. What is the holding which he questions? Is it that which most lawyers hold to be the principle of “judicial review”, that the Supreme Court has the power, under the Constitution, to judge acts of Congress unconstitutional and unenforceable when the Court finds those acts unsupported or prohibited by the Constitution? Or is is the principle which my professor of Constitutional Law at the UNC School of Law, William Strong, held to be the principle of judicial review, which allows any court, before deciding any case, to determine its own jurisdiction to hear and decide it? (Prof. Strong taught us that Marbury v. Madison stood only for the latter principle, and not the stronger principle of what he clarified to be “Constitutional Review”, in which the Supreme Court would later claim the power to strike down other laws of Congress.) Or is the quarrel of Mr. Whitaker with the actual holding in the case – that a writ of mandamus sought from the Supreme
Court under an act of Congress granting the Court original jurisdiction in such cases could not be issued because Congress had no authority to grant the Supreme Court power to take cases under its original jurisdiction which the Constitution did not grant the Court?

Inquiring minds need to know.

Finally, as the Constitution barring the imposition of “religious tests” for Federal office holders, surely Mr. Fein knows that the Constitution only bars the imposition of any such “legal” test, but does not bar either the President or the Senate from judging such a qualification from being pertinent in deciding whether to appoint or confirm any person to a particular office. Throughout most of its history, most Presidents and Senators believed that belief in and fear of God was a requisite to place trust in anyone who would hold substantial powers over the people as an “officer of the United States”. Can that be disputed?

Mr. Whitaker does not stand alone.

#27 Comment By Whine Merchant On November 19, 2018 @ 7:03 pm

I find the mental gymnastics of the “support Trump at all costs” crew of Deplorables to be amazing. Some want to bring back FDR’s pack-the-court approach and others recommend just ignoring the SCOTUS, like in those dictatorships that their Dear Leader loves so much.

This comments section is sounding more and more like the rabid ranting at NatRev and Faux…

#28 Comment By Brooklyn Grange On November 19, 2018 @ 9:13 pm

This essay is nothing but prejudiced, self-serving hokum.

When SCOTUS upholds the temporary appointment of former U.S. attorney Whitaker, perhaps the author will admit that he is unfit to be a political or legal commentator? I won’t hold my breath.


#29 Comment By Ken Zaretzke On November 20, 2018 @ 12:01 pm

Judicial review (invented by Americans) is like capitalism (Invented by our British cousins). Just as as the “creative destruction” of capitalism often destroys traditional ways of life, so does judicial review sometimes destroy traditional values. And just as capitalism contains many goods,so does judicial review contain many goods, or have many good results.

In different ways, judicial review and capitalism are hammers on the anvil of revolutionary change. Judicial review’s revolutionary changes owe less to seemingly inexorable forces and more to the contingency of liberal judges having a majority of seats on SCOTUS and lower federal courts and state courts. Since it’s impossible to reliably prevent that, we’re forced to conclude that judicial review *inevitably* contains destructiveness (of traditional values and institutions) as well as much that is good.

We shouldn’t blindly venerate judicial review any more than we should blindly venerate capitalism. Read the Antifederalist essays of Brutus and get a little perspective. Whitaker is Brutus to Bruce Fein’s Publius. The judiciary is “the least dangerous branch,” Publius famously said. Yeah, right.

#30 Comment By Shane Mage On November 20, 2018 @ 12:45 pm

Hate to have to say this, but Whitaker is much more right than wrong about Marbury v. Madison. Of course the Courts have the power, the right and the duty to invalidate unconstitutional Acts and actions of the other departments. But what is the constitutional basis of that right and that duty? That power is not specified in the Constitution, is it? And doesn’t the Constitution (tenth amendment) specifically reserve all unspecified powers to “the states or the people?” Not so fast. The Constitution, explicitly, says that any Act or action is lawful, is the law of the land, ONLY if it is “pursuant to the Constitution.” That is, if a law or regulation is unconstitutional it is invalid *ab initio*. As such no citizen, and certainly no citizen acting as Judge, has legal or moral obligation to abide by it. Judicial review, thus, is, nothing but application to some specific legal case (“dispute”) of the obligation of all citizens to abide by valid law. What is monstrous about Marbury v. Madison is not the absolutely unexceptional principle of Judicial review but the Imperial Proclamation of John Marshall that it is “emphatically the province” of SCOTUS to determine the constitutionality of laws and actions. The very phrase proclaims the unconstutionality of Marshall’s decision in that “province” (*pro vincia*, “by conquest”) specifically denotes an illegal seizure. By stating that unconstitutional laws and actions are not *inherently* unconstutional but only become so when declared to be such by SCOTUS, Marshall carried out a true coup against the american people and concentrated what is ultimately Supreme power in the hands of a tiny group of appointed “Justices.”

#31 Comment By Mike Segreto On November 20, 2018 @ 1:20 pm

The author opens up with “Flag burning or criticizing government would be a crime”.

The author’s apparent hero, John Marshall, declared the Alien and Sedition Act Constitutional, supporting the jailing of “scribblers” (press) who criticized Marshall’s Party in government.

From there the narrative gets even more goofy, even if the author is unaware of why.

#32 Comment By V.Lombardi On November 20, 2018 @ 1:27 pm

Utter nonsense. In the midst of massive criminal corruption in the DOJ, the author uses sophistry to attack an attempt to have a legitimate DOJ.

This is not a conservative publication. The author is unfit.

#33 Comment By KD On November 20, 2018 @ 4:55 pm

Judicial review is to the rule of law what the Ten Commandments are to Judaism or Christianity.

Don’t you mean “Judicial review is to the rule of lawyer what Pharisees are to Judaism or Clericism is to Christianity”

#34 Comment By EliteCommInc. On November 20, 2018 @ 5:16 pm

I neglected the reference.

excuse me.

vacancy Act


#35 Comment By Barry On November 21, 2018 @ 8:08 am

polistra says:

“There’s nothing “unconstitutional” about his appointment. A president is head of the executive branch and can hire and fire all subordinates within the branch. That’s wildly obvious.”

It’s wildly not obvious, if you passed high school civics.

It’s also never been ‘wildly obvious’ to right-wingers whenever a Democratic administration is in power.

#36 Comment By person w a comment On November 22, 2018 @ 8:57 am

So very, very encouraged to see pushback against Fein for writing all this. Even though Scalia was the greatest Supreme of the last 200 years, he was still wrong in what he was quoted above, at least in the context we see it… Marbury is, to use a Trump phrase, a huge disaster.

#37 Comment By Wizard On November 22, 2018 @ 5:04 pm

Whine Merchant – I used to refer to the die-hard Trump fanbois as cultists, but I think I’ve come up with a better name: Banana Republicans. Trump dreams of ruling like some third world strong man, and they actually seem to think that’s a good idea.

#38 Comment By Quartermaster On November 22, 2018 @ 5:17 pm


Obama was frequently accused, credibly, of wrongdoing throughout both of his terms. If you think Obama was honest, then you were on drugs during the entirety of both terms and nonfunctioning.

As for the article itself, the author has a double standard. By his standard Mueller is an illegal appointment since he was not confirmed by the Senate during Trump’s term. Whittaker, like Mueller, was confirmed by the Senate at another time for a different office.

#39 Comment By Peter On November 22, 2018 @ 5:47 pm

“Throughout most of its history, most Presidents and Senators believed that belief in and fear of God was a requisite to place trust in anyone who would hold substantial powers over the people as an “officer of the United States”. Can that be disputed?

Mr. Whitaker does not stand alone.”

This may be true but it’s wholly ignorant view point.

Our founding fathers knew that a central religion will corrode. As Christianity has done. And fortunate common sense usually prevails in the long term.

I got one am glad we are fading away from old minded thinking.

#40 Comment By JeffK On November 24, 2018 @ 7:35 am

Somebody should review the list of 40 government officials that went to prison under Nixon. Including John Dean, white house legal counsel, and John Mitchel, Attorney General.

Those that forget history are doomed to repeat it.


#41 Comment By JeffK On November 25, 2018 @ 8:05 am

@Wizard says:
November 22, 2018 at 5:04 pm

“Whine Merchant – I used to refer to the die-hard Trump fanbois as cultists, but I think I’ve come up with a better name: Banana Republicans. Trump dreams of ruling like some third world strong man, and they actually seem to think that’s a good idea.”

Banana Republicans. Good one.

Research exists that Republicans prefer authoritarian leadership over democracy. That explains a lot of things.

From an article describing the research. “The authors [Christopher Federico, Stanley Feldman and Christopher Weber] found that in 1992, 62 percent of white voters who ranked highest on the authoritarian scale supported George H.W. Bush. In 2016, 86 percent of the most authoritarian white voters backed Trump, an increase of 24 percentage points….

Three trends — polarization, media change, and the rise of what many people see as threats to the traditional social order — have contributed to a growing divide within American politics. It is a divide between those who place heavy value on social order and cohesion relative to those who value personal autonomy and independence…

All of this lines up perfectly with what Robert Jones called “nostalgia voters.”

Trump’s campaign—with its sweeping promise to “make American great again”—triumphed by converting self-described “values voters” into what I’ve called “nostalgia voters.” Trump’s promise to restore a mythical past golden age—where factory jobs paid the bills and white Protestant churches were the dominant cultural hubs—powerfully tapped evangelical anxieties about an uncertain future.”

Trump is a ignorant buffoon, but he has an uncanny ability to discern the underlying zeitgeist of his base. Probably because he is totally into that world view. Including Alex Jones and an assortment of odious right wing nut jobs. Unfortunately he is very clever in his ability to manipulate his followers.