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Supreme Court Rejects Challenge to Whitaker Appointment

By William Vogeler, Esq. on January 14, 2019 | Last updated on March 21, 2019

Matthew Whitaker, acting attorney general, will keep his job at the Justice Department -- for now.

The U.S. Supreme Court refused to hear a challenge that claimed Whitaker's appointment was illegal because he was not confirmed by the Senate. President Trump named Whitaker to fill in for Jeff Sessions, who resigned in November under pressure from the president.

Arguing in Michaels v. Whitaker , Justice Department lawyers said former presidents have appointed high level officials 160 times without Senate approval. This time, it apparently isn't necessary either.

Whitaker Challenge

Attorneys for Barry Michaels, the petitioner, argued that Deputy Attorney General Rod Rosenstein automatically became acting attorney general after Sessions left. Whitaker's appointment violated the Appointments Clause, they argued.

The Supreme Court refused to give it a second look. The Justices denied review, keeping it from further consideration by the entire bench.

In a brief order, the High Court said that the Constitution requires certain officials be confirmed by the Senate, but "it does not follow that Acting Attorney General should be understood to be one." That's because an acting official is not in a "continuing or permanent" position, the order said.

A similar challenge is pending in federal court in Maryland, but it may be a moot point. Trump has named a new attorney general.

Barr Nomination

Nominee William Barr is already stirring some controversy, as Senate leaders said he would not meet with them. Sen. Amy Klobuchar, a member of the Senate Judiciary Committee, said Barr would not meet with her until after the confirmation hearing.

"The reason given?" she Tweeted. "The shutdown."

Klobuchar said it was a first for her as a member of the committee. She wanted to vet the nominee beginning Jan. 15.

It could happen if the shutdown is over by then -- or not.

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