Joanne Freeman on Federalist No. 76 and the Whitaker Lawsuit

Trump and Whitaker

A group of Senate Democrats–Richard Blumenthal (D-Conn), Sheldon Whitehouse (D-R.I.), and Mazie K. Hirono (D-Hawaii)–has filed a lawsuit against the Trump administration.  The suit challenges the constitutionality of the appointment of Matthew Whitaker as acting attorney general.

The suit invokes the Constitution’s Appointments Clause and references Alexander Hamilton in Federalist 76:

The Constitution’s Appointments Clause requires that the Senate confirm high-level federal government officials, including the Attorney General, before they exercise the duties of the office. The Framers included this requirement to ensure that senior administration officials receive scrutiny by the American people’s representatives in Congress. The Appointments Clause is also meant to prevent the President, in the words of Alexander Hamilton in Federalist 76, from appointing officers with “no other merit than that of…possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”

“Installing Matthew Whitaker so flagrantly defies constitutional law that any viewer of School House Rock would recognize it. Americans prize a system of checks and balances, which President Trump’s dictatorial appointment betrays,” Blumenthal said. “President Trump is denying Senators our constitutional obligation and opportunity to do our job: scrutinizing the nomination of our nation’s top law enforcement official. The reason is simple: Whitaker would never pass the advice and consent test. In selecting a so-called “constitutional nobody” and thwarting every Senator’s constitutional duty, Trump leaves us no choice but to seek recourse through the courts.”

On Twitter, Yale historian Joanne Freeman provides some context:

5 thoughts on “Joanne Freeman on Federalist No. 76 and the Whitaker Lawsuit

  1. John: sure. In the same way that a person can be conservative and pro-Trump (again — I’m not a Trump voter) and also be correct.

    My beef, if you will, with many of the folks you cite who oppose Trump, is the glaring double standards. (In very much the same way that it probably drives you crazy to listen to “court evangelicals” underplay, or indeed excuse, Trump’s moral failings while many of them excoriated Clinton for the same behavior.)


  2. You raise a good point, and there is a bona fide legal and constitutional dispute over whether Whitaker had to be confirmed by the Senate. Clarence Thomas, for example, would say yes. But longstanding precedent, across both D and R administrations of appointing “acting” agency heads without Senate approval, would argue that this appointment was proper.

    Frankly, I don’t think there should be any such thing as an “acting” cabinet member, and I don’t believe Hamilton would approve of such a creature. But that genie is long since out of the bottle.

    But most of the critics of Whitaker — including Ms. Freeman — are not really concerned about the legal merits. They are annoyed that a Trump “loyalist” is now in a position to potentially circumscribe the Mueller investigation. But I’m glad she is defending the Senate’s important role in acting as a check on executive power, and appealing to the authority of the non-living, non-evolving Federalist papers, no less. Wonder what she thought of Obama’s Iran treat– er, hand shake deal with a foreign government which intentionally bypassed Congress and that crucial, independent Senate she now fervently champions? I don’t recall a similar, Hamiltonian tweetstorm.

    Situational principles do come in handy from time to time.


  3. It does not apply, quite simply, because both Mr. Holder and Ms. Lynch were confirmed by the U.S. Senate.

    Now what Hamilton would say about the wisdom of their confirmation I do not know, but they were confirmed, Mr. Holder with 75 votes (in a Democratic-controlled Senate) and Ms. Lynch with 56 votes (in a Republican-controlled Senate).

    The checks and balances worked, no matter what we think of the outcome.

    Liked by 1 person

  4. It is always … instructive to watch a progressive historian and avowed anti-Trumper now lamenting the appointment of individuals “personally allied” with the President and acting as “obsequious instruments of his pleasure.”

    Someone might ask Ms. Freeman whether Hamilton’s warning about loyal minions doing
    the bidding of the President applied to Eric Holder or Loretta Lynch. And if not, why not?


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