(THIS ARTICLE IS COURTESY OF THE WASHINGTON EXAMINER NEWS)
The Senate shouldn’t be sleeping on Whitaker’s unconstitutional appointment
The resignation of Attorney General Jeff Sessions and his replacement with “acting Attorney General” Matthew Whitaker has proven quite controversial since it was announced. Big-name, right-of-center constitutional experts — including, it appears, Supreme Court Justice Clarence Thomas by a backdoor route — have opined that it is straight-up unconstitutional.
It is a conclusion that’s hard to disregard on its merits. But the failure of the administration to respect the “advice and consent” clause of the Constitution is not the only reason why the Senate should be pushing back, and hard, on the acting attorney general situation.
There’s a far more straightforward reason: The appointment of Whitaker is a blatant power grab, and no senator worth his salt should be willing to give up his power over the staffing of the administration.
That is especially so if the politician in question is named Mitch McConnell.
The Republican Senate majority leader from Kentucky regards himself as being “in the personnel business.” What McConnell means by that is that the most important impact he and his colleagues can have in government is getting people they like confirmed to high office, where they can make legally bulletproof decisions that will shape the future of this country for decades to come.
The area where this is most evident, pertinent, and with the longest-term consequence is in the judiciary. But Senate-confirmable administration posts count as well — not only those confirmed or blocked, but also those thwarted or prevented behind the scenes.
Why, then, would McConnell — let alone his other 99 colleagues — allow their power to be grabbed in such an overt and easily stopped manner by any president? Why not demand that if President Trump wants Whitaker, he put him forward as a nominee for attorney general? And if he does not want Whitaker, why not demand he name his preferred successor to Sessions right now, so the Senate can get on with the constitutionally mandated confirmation process?
The reality is, Trump should have had a nominee’s name ready to announce the second news broke of Sessions’ resignation. It’s not like he hasn’t had time to think about it. Rumors that Sessions would exit after the midterm elections have been swirling D.C. for months now. Trump has wanted him gone for much longer than that.
But it is simply unacceptable that the Senate would not be forcing the president to get on with it now. Every day he delays is an erosion of the Senate’s power and reason for existence.
Under former President Barack Obama, we saw a consistent erosion of the notion that administrations need to adhere to constitutional law.
That was actually the problem at issue in the case that George Conway, Kellyanne Conway’s husband, and former Solicitor General Neal Katyal cited in their op-ed last week dubbing the “acting attorney general” situation unconstitutional.
And Thomas, Trump’s “favorite justice,” considered what the Obama administration did with National Labor Relations Board appointments to be not merely unlawful but unconstitutional — and he was right.
Trump can and should do better than Obama did in this regard. But so should McConnell, if he really is in the personnel business. The majority leader should not tolerate this unconstitutional power grab, which overtly and directly hurts him and his caucus.
Liz Mair is president of Mair Strategies and strategist to the Swamp Accountability Project.