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:

A Conservative on Why Matthew Whitaker is Unfit to be Attorney General

Whittaker

Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under Ronald Reagan.  In a recent piece at The American Conservative, he explains why Trump’s appointment as acting U.S. attorney general is unfit.  Here is a taste of his piece:

Article VI, section 1, clause 3 of the Constitution provides that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”

In the Christian conservative Family Leader debate in 2014, as he was campaigning to capture the Senate nomination in Iowa, Mr. Whitaker elaborated that in assisting the confirmation of judges:

“I’d like to see things like their worldview, what informs them.  Are they people of faith?  Do they have a [New Testament] biblical view of justice?—which I think is very important.  And what I know is as long as they have that worldview, that they’ll be a good judge.  And if they have a secular worldview, then I’m going to be very concerned about how they judge.”

The First Amendment also protects the free exercise of religion. In Torcasco v. Watkins (1961), the Supreme Court declared unconstitutional a requirement that persons declare a belief in the existence of God as a condition of holding public office.

Mr. Whitaker, however, has declared that judicial nominees should be vetted based on whether they have a New Testament biblical view of justice.

In sum, he is no more fit to serve as acting attorney general as would be an atheist to serve as the Pope.   

Read the entire piece here.