In the past, the Supreme Court has cast doubt on the legality of an agency’s actions if a top official was serving illegally. Whitaker’s suspect status could pose legal problems for the government. He said the Constitution makes clear “principal officers must be appointed by the president by and with the advice and consent of the Senate.” Justice Clarence Thomas in a concurring opinion went further. He resolved the case without deciding the constitutional issue, ruling that Obama had violated the Federal Vacancies Reform Act of 1998 by appointing an acting general counsel who had been nominated for the same post at the labor board, but was not confirmed by the Senate. Looking back at early American history, Roberts said that Congress in 1792 had allowed President George Washington to make temporary appointments of “acting officials.” “The framers envisioned it as an ‘excellent check upon a spirit of favoritism in the president’ and a guard against ‘the appointment of unfit characters,’” he wrote, quoting a passage from the “Federalist Papers.” “The Senate’s advice and consent power is a critical structural safeguard of the constitutional scheme,” said Chief Justice John G.
Last year, the justices ruled in a case raising a similar issue and struck down President Obama’s appointment of an acting general counsel at the National Labor Relations Board.
The Constitution allows “inferior officers” to be appointed by the president or by the “heads of departments.” But the attorney general is what the Supreme Court has referred to as a “principal officer” - a person who ordinarily must have Senate approval. Trump did not respond directly when asked about the legal dispute, which involves the constitutional provision that says the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint” ambassadors, judges and “all other officers of the United States.”
I mean, I know Matt Whitaker,” he said then. “I can tell you Matt Whitaker’s a great guy.
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