In a surprise development the issue of the legality of the appointment of Matthew Whitaker, as Acting Attorney General, has now reached the Supreme Court, although it is most likely that the Justices will refer it back to the lower courts. The Supreme Court rarely want to be the first court to rule, but rather “review, not of first view”.
Barry Michaels brought an action against the federal government challenging the prohibition of convicted felons from possessing firearms. After losing in the lower courts Michaels appealed his case, Michaels v Sessions, to the SCOTUS. In his Supreme Court case the Solicitor General’s response is due December 17th. However, on Friday Michaels filed a motion to substitute Rod J. Rosenstein as the respondent and contends that Whitaker cannot be automatically substituted for Sessions because his appointment isn’t valid. The motion is a very good summary of the case against the Whitaker appointment, and can be found here:
www.scotusblog.com/…
The key to the case is the interplay between the Constitution and the Federal Vacancies Reform Act of 1998 (FVRA). There are many who believe the Constitution clearly rules in this case, and that Whitaker, although confirmed by the Senate as US Attorney for Iowa in the GWB administration, was not in a Senate approved position when he was elevated to Acting Attorney General, so his appointment doesn’t even qualify under the FVRA.
There is a case from Maryland in the federal court system challenging the Whitaker appointment, and more are expected including from Congressional Democrats. Michael’s legal team, which includes some of the same lawyers as the Maryland lawsuit, makes the case that the Supreme Court is going to eventually decide this issue, so why not now?
An excellent summary of the motion, and the decisions facing the Court in this scotusblog.com analysis:
www.scotusblog.com/...
Additional media reporting on this case here:
www.reuters.com/…
www.nbcnews.com/...