b'(Slip Opinion)\n\nDesignating an Acting Attorney General\nThe President\xe2\x80\x99s designation of a senior Department of Justice official to serve as Acting\nAttorney General was expressly authorized by the Vacancies Reform Act. That act is\navailable to the President even though the Department\xe2\x80\x99s organic statute prescribes an\nalternative succession mechanism for the office of Attorney General.\nThe President\xe2\x80\x99s designation of an official who does not hold a Senate-confirmed office to\nserve, on a temporary basis, as Acting Attorney General was consistent with the Appointments Clause. The designation did not transform the official\xe2\x80\x99s position into a\nprincipal office requiring Senate confirmation.\nNovember 14, 2018\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nAfter Attorney General Jefferson B. Sessions III resigned on November 7, 2018, the President designated Matthew G. Whitaker, Chief of\nStaff and Senior Counselor to the Attorney General, to act temporarily as\nthe Attorney General under the Federal Vacancies Reform Act of 1998,\n5 U.S.C. \xc2\xa7\xc2\xa7 3345\xe2\x80\x933349d. This Office had previously advised that the\nPresident could designate a senior Department of Justice official, such as\nMr. Whitaker, as Acting Attorney General, and this memorandum explains the basis for that conclusion.\nMr. Whitaker\xe2\x80\x99s designation as Acting Attorney General accords with\nthe plain terms of the Vacancies Reform Act, because he had been serving\nin the Department of Justice at a sufficiently senior pay level for over\na year. See id. \xc2\xa7 3345(a)(3). The Department\xe2\x80\x99s organic statute provides\nthat the Deputy Attorney General (or others) may be Acting Attorney\nGeneral in the case of a vacancy. See 28 U.S.C. \xc2\xa7 508. But that statute\ndoes not displace the President\xe2\x80\x99s authority to use the Vacancies Reform\nAct as an alternative. As we have previously recognized, the President\nmay use the Vacancies Reform Act to depart from the succession order\nspecified under section 508. See Authority of the President to Name an\nActing Attorney General, 31 Op. O.L.C. 208 (2007) (\xe2\x80\x9c2007 Acting Attorney General \xe2\x80\x9d).\nWe also advised that Mr. Whitaker\xe2\x80\x99s designation would be consistent\nwith the Appointments Clause of the U.S. Constitution, which requires the\nPresident to obtain \xe2\x80\x9cthe Advice and Consent of the Senate\xe2\x80\x9d before appointing a principal officer of the United States. U.S. Const. art. II, \xc2\xa7 2,\ncl. 2. Although an Attorney General is a principal officer requiring Senate\n1\n\n\x0c42 Op. O.L.C. __ (Nov. 14, 2018)\n\nconfirmation, someone who temporarily performs his duties is not. As all\nthree branches of government have long recognized, the President may\ndesignate an acting official to perform the duties of a vacant principal\noffice, including a Cabinet office, even when the acting official has not\nbeen confirmed by the Senate.\nCongress did not first authorize the President to direct non-Senateconfirmed officials to act as principal officers in 1998; it did so in multiple statutes starting in 1792. In that year, Congress authorized the President to ensure the government\xe2\x80\x99s uninterrupted work by designating persons to perform temporarily the work of vacant offices. The President\xe2\x80\x99s\nauthority applied to principal offices and did not require the President to\nselect Senate-confirmed officers. In our brief survey of the history, we\nhave identified over 160 times before 1860 in which non-Senateconfirmed persons performed, on a temporary basis, the duties of such\nhigh offices as Secretary of State, Secretary of the Treasury, Secretary of\nWar, Secretary of the Navy, Secretary of the Interior, and Postmaster\nGeneral. While designations to the office of Attorney General were less\nfrequent, we have identified at least one period in 1866 when a nonSenate-confirmed Assistant Attorney General served as Acting Attorney\nGeneral. Mr. Whitaker\xe2\x80\x99s designation is no more constitutionally problematic than countless similar presidential orders dating back over 200 years.\nWere the long agreement of Congress and the President insufficient,\njudicial precedent confirms the meaning of the Appointments Clause in\nthese circumstances. When Presidents appointed acting Secretaries in the\nnineteenth century, those officers (or their estates) sometimes sought\npayment for their additional duties, and courts recognized the lawfulness\nof such appointments. The Supreme Court confirmed the legal understanding of the Appointments Clause that had prevailed for over a century\nin United States v. Eaton, 169 U.S. 331 (1898), holding that an inferior\nofficer may perform the duties of a principal officer \xe2\x80\x9cfor a limited time[]\nand under special and temporary conditions\xe2\x80\x9d without \xe2\x80\x9ctransform[ing]\xe2\x80\x9d his\noffice into one for which Senate confirmation is required. Id. at 343. The\nSupreme Court has never departed from Eaton\xe2\x80\x99s holding and has repeatedly relied upon that decision in its recent Appointments Clause cases.\nIn the Vacancies Reform Act, Congress renewed the President\xe2\x80\x99s authority to designate non-Senate-confirmed senior officials to perform the\nfunctions and duties of principal offices. In 2003, we reviewed the President\xe2\x80\x99s authority in connection with the Director of the Officer of Management and Budget (\xe2\x80\x9cOMB\xe2\x80\x9d), who is a principal officer, and concluded\n2\n\n\x0cDesignating an Acting Attorney General\n\nthat the President could designate a non-Senate-confirmed official to\nserve temporarily as Acting Director. See Designation of Acting Director\nof the Office of Management and Budget, 27 Op. O.L.C. 121 (2003)\n(\xe2\x80\x9cActing Director of OMB\xe2\x80\x9d). Presidents George W. Bush and Barack\nObama placed non-Senate-confirmed officials in several lines of agency\nsuccession and actually designated unconfirmed officials as acting agency\nheads. President Trump, too, has previously exercised that authority in\nother departments; Mr. Whitaker is not the first unconfirmed official to\nact as the head of an agency in this administration.\nIt is no doubt true that Presidents often choose acting principal officers\nfrom among Senate-confirmed officers. But the Constitution does not\nmandate that choice. Consistent with our prior opinion and with centuries\nof historical practice and precedents, we advised that the President\xe2\x80\x99s\ndesignation of Mr. Whitaker as Acting Attorney General on a temporary\nbasis did not transform his position into a principal office requiring Senate confirmation.\nI.\nMr. Whitaker\xe2\x80\x99s designation as Acting Attorney General comports with\nthe terms of the Vacancies Reform Act. That Act provides three mechanisms by which an acting officer may take on the functions and duties\nof an office, when an executive officer who is required to be appointed\nby the President with the advice and consent of the Senate \xe2\x80\x9cdies, resigns,\nor is otherwise unable to perform the functions and duties of the office.\xe2\x80\x9d\n5 U.S.C. \xc2\xa7 3345(a). First, absent any other designation, the \xe2\x80\x9cfirst assistant\xe2\x80\x9d to the vacant office shall perform its functions and duties. Id.\n\xc2\xa7 3345(a)(1). Second, the President may depart from that default course\nby directing another presidential appointee, who is already Senate confirmed, to perform the functions and duties of the vacant office. Id.\n\xc2\xa7 3345(a)(2). Or, third, the President may designate an officer or employee within the same agency to perform the functions and duties of the\nvacant office, provided that he or she has been in the agency for at least\n90 days in the 365 days preceding the vacancy, in a position for which the\nrate of pay is equal to or greater than the minimum rate for GS-15 of the\nGeneral Schedule. Id. \xc2\xa7 3345(a)(3). Except in the case of a vacancy\ncaused by sickness, the statute imposes time limits on the period during\nwhich someone may act. Id. \xc2\xa7 3346. And the acting officer may not be\nnominated by the President to fill the vacant office and continue acting in\n3\n\n\x0c42 Op. O.L.C. __ (Nov. 14, 2018)\n\nit, unless he was already the first assistant to the office for at least 90 days\nin the 365 days preceding the vacancy or is a Senate-confirmed first\nassistant. Id. \xc2\xa7 3345(b)(1)\xe2\x80\x93(2); see also Nat\xe2\x80\x99l Labor Relations Bd. v. SW\nGeneral, Inc., 137 S. Ct. 929, 941 (2017).\nA.\nThe Vacancies Reform Act unquestionably authorizes the President to\ndirect Mr. Whitaker to act as Attorney General after the resignation of\nAttorney General Sessions on November 7, 2018. 1 Mr. Whitaker did not\nfall within the first two categories of persons made eligible by section\n3345(a). He was not the first assistant to the Attorney General, because\n28 U.S.C. \xc2\xa7 508(a) identifies the Deputy Attorney General as the \xe2\x80\x9cfirst\nassistant to the Attorney General\xe2\x80\x9d \xe2\x80\x9cfor the purpose of section 3345.\xe2\x80\x9d Nor\ndid Mr. Whitaker already hold a Senate-confirmed office. Although Mr.\nWhitaker was previously appointed, with the advice and consent of the\nSenate, as the United States Attorney for the Southern District of Iowa,\nhe resigned from that position on November 25, 2009. At the time of\nthe resignation of Attorney General Sessions, Mr. Whitaker was serving\nin a position to which he was appointed by the Attorney General.\n\nAttorney General Sessions submitted his resignation \xe2\x80\x9c[a]t [the President\xe2\x80\x99s] request,\xe2\x80\x9d\nLetter for President Donald J. Trump, from Jefferson B. Sessions III, Attorney General,\nbut that does not alter the fact that the Attorney General \xe2\x80\x9cresign[ed]\xe2\x80\x9d within the meaning\nof section 3345(a). Even if Attorney General Sessions had declined to resign and was\nremoved by the President, he still would have been rendered \xe2\x80\x9cotherwise unable to perform\nthe functions and duties of the office\xe2\x80\x9d for purposes of section 3345(a). As this Office\nrecently explained, \xe2\x80\x9can officer is \xe2\x80\x98unable to perform the functions and duties of the office\xe2\x80\x99\nduring both short periods of unavailability, such as a period of sickness, and potentially\nlonger ones, such as one resulting from the officer\xe2\x80\x99s removal (which would arguably not\nbe covered by the reference to \xe2\x80\x98resign[ation].\xe2\x80\x99).\xe2\x80\x9d Designating an Acting Director of the\nBureau of Consumer Financial Protection, 41 Op. O.L.C. __, at *4 (2017); see also\nGuidance on Application of Federal Vacancies Reform Act of 1998, 23 Op. O.L.C. 60, 61\n(1999) (\xe2\x80\x9cIn floor debate, Senators said, by way of example, that an officer would be\n\xe2\x80\x98otherwise unable to perform the functions and duties of the office\xe2\x80\x99 if he or she were\nfired, imprisoned, or sick.\xe2\x80\x9d). Indeed, any other interpretation would leave a troubling gap\nin the ability to name acting officers. For most Senate-confirmed offices, the Vacancies\nReform Act is \xe2\x80\x9cthe exclusive means\xe2\x80\x9d for naming an acting officer. 5 U.S.C. \xc2\xa7 3347(a). If\nthe statute did not apply in cases of removal, then it would mean that no acting officer\xe2\x80\x94\nnot even the first assistant\xe2\x80\x94could take the place of a removed officer, even where the\nPresident had been urgently required to remove the officer, for instance, by concerns over\nnational security, corruption, or other workplace misconduct.\n1\n\n4\n\n\x0cDesignating an Acting Attorney General\n\nIn that position, Mr. Whitaker fell squarely within the third category of\nofficials, identified in section 3345(a)(3). As Chief of Staff and Senior\nCounselor, he had served in the Department of Justice for more than 90\ndays in the year before the resignation, at a GS-15 level or higher. And\nMr. Whitaker has not been nominated to be Attorney General, an action\nthat would render him ineligible to serve as Acting Attorney General\nunder section 3345(b)(1). Accordingly, under the plain terms of the Vacancies Reform Act, the President could designate Mr. Whitaker to serve\ntemporarily as Acting Attorney General subject to the time limitations of\nsection 3346.\nB.\nThe Vacancies Reform Act remains available to the President even\nthough 28 U.S.C. \xc2\xa7 508 separately authorizes the Deputy Attorney General and certain other officials to act as Attorney General in the case of\na vacancy. 2 We previously considered whether this statute limits the\nPresident\xe2\x80\x99s authority under the Vacancies Reform Act to designate someone else to be Acting Attorney General. 2007 Acting Attorney General,\n31 Op. O.L.C. 208. We have also addressed similar questions with respect\nto other agencies\xe2\x80\x99 succession statutes. See Designating an Acting Director\nof the Bureau of Consumer Financial Protection, 41 Op. O.L.C. __ (2017)\n(\xe2\x80\x9cActing Director of CFPB\xe2\x80\x9d); Acting Director of OMB, 27 Op. O.L.C.\nat 121 n.1. In those instances, we concluded that the Vacancies Reform\nAct is not the \xe2\x80\x9cexclusive means\xe2\x80\x9d for the temporary designation of an\nacting official, but that it remains available as an option to the President.\nWe reach the same conclusion here: Section 508 does not limit the President\xe2\x80\x99s authority to invoke the Vacancies Reform Act to designate an\nActing Attorney General.\nWe previously concluded that section 508 does not prevent the President from relying upon the Vacancies Reform Act to determine who will\nbe the Acting Attorney General. Although the Vacancies Reform Act,\n2 Under 28 U.S.C. \xc2\xa7 508(a), in the case of a vacancy in the office of Attorney General,\n\xe2\x80\x9cthe Deputy Attorney General may exercise all the duties of that office, and for the\npurpose of [the Vacancies Reform Act] the Deputy Attorney General is the first assistant\nto the Attorney General.\xe2\x80\x9d If the offices of Attorney General and Deputy Attorney General\nare both vacant, \xe2\x80\x9cthe Associate Attorney General shall act as Attorney General,\xe2\x80\x9d and\n\xe2\x80\x9c[t]he Attorney General may designate the Solicitor General and the Assistant Attorneys\nGeneral, in further order of succession, to act as Attorney General.\xe2\x80\x9d Id. \xc2\xa7 508(b).\n\n5\n\n\x0c42 Op. O.L.C. __ (Nov. 14, 2018)\n\nwhich \xe2\x80\x9cordinarily is the exclusive means for naming an acting officer,\xe2\x80\x9d\n2007 Acting Attorney General, 31 Op. O.L.C. at 209 (citing 5 U.S.C.\n\xc2\xa7 3347), makes an exception for, and leaves in effect, statutes such as\nsection 508, \xe2\x80\x9c[t]he Vacancies Reform Act nowhere says that, if another\nstatute remains in effect, the Vacancies Reform Act may not be used.\xe2\x80\x9d\nId. In fact, the structure of the Vacancies Reform Act makes clear that\noffice-specific provisions are treated as exceptions from its generally\nexclusive applicability, not as provisions that supersede the Vacancies\nReform Act altogether. 3 Furthermore, as we noted, \xe2\x80\x9cthe Senate Committee\nReport accompanying the Act expressly disavows\xe2\x80\x9d the view that, where\nanother statute is available, the Vacancies Reform Act may not be used.\nId. (citing S. Rep. No. 105-250, at 17 (1998)). That report stated that,\n\xe2\x80\x9c\xe2\x80\x98with respect to the specific positions in which temporary officers may\nserve under the specific statutes this bill retains, the Vacancies [Reform]\nAct would continue to provide an alternative procedure for temporarily\noccupying the office.\xe2\x80\x99\xe2\x80\x9d Id. We therefore concluded that the President\ncould direct the Assistant Attorney General for the Civil Division to act as\nAttorney General under the Vacancies Reform Act, even though the\nincumbent Solicitor General would otherwise have served under the chain\nof succession specified in section 508 (as supplemented by an Attorney\nGeneral order).\nAt the time of our 2007 Acting Attorney General opinion, the first two\noffices specified in section 508(a) and (b)\xe2\x80\x94Deputy Attorney General\nand Associate Attorney General\xe2\x80\x94were both vacant. See 31 Op. O.L.C.\nat 208. That is not currently the case; there is an incumbent Deputy Attorney General. But the availability of the Deputy Attorney General does\nnot affect the President\xe2\x80\x99s authority to invoke section 3345(a)(3). Nothing\nin section 508 suggests that the Vacancies Reform Act does not apply\nwhen the Deputy Attorney General can serve. To the contrary, the statute\nexpressly states that the Deputy Attorney General is the \xe2\x80\x9cfirst assistant to\nthe Attorney General\xe2\x80\x9d \xe2\x80\x9cfor the purpose of section 3345 of title 5\xe2\x80\x9d (i.e., the\nprovision of the Vacancies Reform Act providing for the designation of\nan acting officer). 28 U.S.C. \xc2\xa7 508(a). It further provides that the Deputy\n\nOne section (entitled \xe2\x80\x9cExclusion of certain offices\xe2\x80\x9d) is used to exclude certain offices\naltogether. 5 U.S.C. \xc2\xa7 3349c. Office-specific statutes, however, are mentioned in a\ndifferent section (entitled \xe2\x80\x9cExclusivity\xe2\x80\x9d) that generally makes the Vacancies Reform Act\n\xe2\x80\x9cthe exclusive means\xe2\x80\x9d for naming an acting officer but also specifies exceptions to that\nexclusivity. Id. \xc2\xa7 3347(a)(1).\n3\n\n6\n\n\x0cDesignating an Acting Attorney General\n\nAttorney General \xe2\x80\x9cmay\xe2\x80\x9d serve as Acting Attorney General, not that he\n\xe2\x80\x9cmust,\xe2\x80\x9d underscoring that the Vacancies Reform Act remains an alternative means of appointment.4 These statutory cross-references confirm that\nsection 508 works in conjunction with, and does not displace, the Vacancies Reform Act.\nAlthough the Deputy Attorney General is the default choice for Acting\nAttorney General under section 3345(a)(1), the President retains the authority to invoke the other categories of eligible officials, \xe2\x80\x9cnotwithstanding\n[the first-assistant provision in] paragraph (1).\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3345(a)(2), (3).\nMoreover, there is reason to believe that Congress, in enacting the Vacancies Reform Act, deliberately chose to make the second and third categories of officials in section 3345(a) applicable to the office of Attorney\nGeneral. Under the previous Vacancies Act, the first assistant to an office\nwas also the default choice for filling a vacant Senate-confirmed position,\nand the President was generally able to depart from that by selecting\nanother Senate-confirmed officer. See 5 U.S.C. \xc2\xa7 3347 (1994). That additional presidential authority, however, was expressly made inapplicable\n\xe2\x80\x9cto a vacancy in the office of Attorney General.\xe2\x80\x9d Id.; see also Rev. Stat.\n\xc2\xa7 179 (2d ed. 1878), 18 Stat. pt. 1, at 28 (repl. vol.). Yet, when Congress\nenacted the Vacancies Reform Act in 1998, it did away with the exclusion\nfor the office of Attorney General. See 5 U.S.C. \xc2\xa7 3349c (excluding\ncertain other officers).5\nOur conclusion that the Vacancies Reform Act remains available, notwithstanding section 508, is consistent with our prior opinions. In Acting\nDirector of OMB, we recognized that an OMB-specific statute, 31 U.S.C.\n\n4\n\nWe do not mean to suggest that a different result would follow if section 508 said\n\xe2\x80\x9cshall\xe2\x80\x9d instead of \xe2\x80\x9cmay,\xe2\x80\x9d since as discussed at length in Acting Director of CFPB, such\nmandatory phrasing in a separate statute does not itself oust the Vacancies Reform Act.\nSee 41 Op. O.L.C. __, at *7\xe2\x80\x939 & n.3. The point is that, in contrast with the potential\nambiguity arising from the appearance of \xe2\x80\x9cshall\xe2\x80\x9d in the CFPB-specific statute, section 508\nexpressly acknowledges that the Deputy Attorney General is the first assistant but will not\nnecessarily serve in the case of a vacancy in the office of Attorney General.\n5 When it reported the Vacancies Reform Act, the Senate Committee on Governmental\nAffairs contemplated that the Attorney General would continue to be excluded by language in a proposed section 3345(c) that would continue to make section 508 \xe2\x80\x9capplicable\xe2\x80\x9d\nto the office. See S. Rep. No. 105-250, at 13, 25; 144 Cong. Rec. 12,433 (June 16, 1998).\nBut that provision \xe2\x80\x9cwas not enacted as part of the final bill, and no provision of the\nVacancies Reform Act bars the President from designating an Acting Attorney General\nunder that statute.\xe2\x80\x9d 2007 Acting Attorney General, 31 Op. O.L.C. at 209 n.1.\n\n7\n\n\x0c42 Op. O.L.C. __ (Nov. 14, 2018)\n\n\xc2\xa7 502(f ), did not displace the President\xe2\x80\x99s authority under the Vacancies\nReform Act. See 27 Op. O.L.C. at 121 n.1 (\xe2\x80\x9cThe Vacancies Reform Act\ndoes not provide, however, that where there is another statute providing\nfor a presidential designation, the Vacancies Reform Act becomes unavailable.\xe2\x80\x9d). More recently, we confirmed that the President could designate an Acting Director of the Bureau of Consumer Financial Protection\n(\xe2\x80\x9cCFPB\xe2\x80\x9d), notwithstanding 12 U.S.C. \xc2\xa7 5491(b)(5), which provides that\nthe Deputy Director of the CFPB \xe2\x80\x9cshall\xe2\x80\x9d serve as Acting Director when\nthe Director is unavailable. See Acting Director of CFPB, 41 Op. O.L.C.\n__. We reasoned that the CFPB-specific statute should \xe2\x80\x9cinteract with the\nVacancies Reform Act in the same way as other, similar statutes providing an office-specific mechanism for an individual to act in a vacant\nposition.\xe2\x80\x9d Id. at *7\xe2\x80\x939 & n.3. We noted that the Vacancies Reform Act\nitself provides that a first assistant to a vacant office \xe2\x80\x9cshall perform the\nfunctions and duties\xe2\x80\x9d of that office unless the President designates someone else to do so, 5 U.S.C. \xc2\xa7 3345(a), and that mandatory language in\neither the CFPB-specific statute or the Vacancies Reform Act does not\nforeclose the availability of the other statute. Acting Director of CFPB, 41\nOp. O.L.C. __, at *7\xe2\x80\x938.\nCourts have similarly concluded that the Vacancies Reform Act remains available as an alternative to office-specific statutes. See Hooks v.\nKitsap Tenant Support Servs., Inc., 816 F.3d 550, 555\xe2\x80\x9356 (9th Cir. 2016)\n(General Counsel of the National Labor Relations Board, which has its\nown office-specific statute prescribing a method of filling a vacancy);\nEnglish v. Trump, 279 F. Supp. 3d 307, 323\xe2\x80\x9324 (D.D.C. 2018) (holding\nthat the mandatory language in the CFPB-specific statute is implicitly\nqualified by the Vacancies Reform Act\xe2\x80\x99s language providing that the\nPresident also \xe2\x80\x9cmay direct\xe2\x80\x9d qualifying individuals to serve in an acting\ncapacity), appeal dismissed upon appellant\xe2\x80\x99s motion, No. 18-5007, 2018\nWL 3526296 (D.C. Cir. July 13, 2018).\nFor these reasons, we believe that the President could invoke the Vacancies Reform Act in order to designate Mr. Whitaker as Acting Attorney General ahead of the alternative line of succession provided under\nsection 508.\nII.\nWhile the Vacancies Reform Act expressly authorizes the President to\nselect an unconfirmed official as Acting Attorney General, Congress may\n8\n\n\x0cDesignating an Acting Attorney General\n\nnot authorize an appointment mechanism that would conflict with the\nConstitution. See Freytag v. Comm\xe2\x80\x99r, 501 U.S. 868, 883 (1991). The\nAppointments Clause requires the President to \xe2\x80\x9cappoint\xe2\x80\x9d principal officers, such as the Attorney General, \xe2\x80\x9cby and with the Advice and Consent\nof the Senate.\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 2, cl. 2. But for \xe2\x80\x9cinferior Officers,\xe2\x80\x9d\nCongress may vest the appointment power \xe2\x80\x9cin the President alone, in the\nCourts of Law, or in the Heads of Departments.\xe2\x80\x9d Id.\nThe President\xe2\x80\x99s designation of Mr. Whitaker as Acting Attorney General is consistent with the Appointments Clause so long as Acting Attorney General is not a principal office that requires Senate confirmation.\nIf so, it does not matter whether an acting official temporarily filling\na vacant principal office is an inferior officer or not an \xe2\x80\x9cofficer\xe2\x80\x9d at all\nwithin the meaning of the Constitution, because Mr. Whitaker was appointed in a manner that satisfies the requirements for an inferior officer:\nHe was appointed by Attorney General Sessions, who was the Head of\nthe Department, and the President designated him to perform additional\nduties. See Acting Director of OMB, 27 Op. O.L.C. at 124\xe2\x80\x9325. If the\ndesignation constituted an appointment to a principal office, however,\nthen section 3345(a)(3) would be unconstitutional as applied, because\nMr. Whitaker does not currently occupy a position requiring Senate confirmation.\nFor the reasons stated below, based on long-standing historical practice\nand precedents, we do not believe that the Appointments Clause may be\nconstrued to require the Senate\xe2\x80\x99s advice and consent before Mr. Whitaker\nmay be Acting Attorney General.\nA.\nThe Attorney General is plainly a principal officer, who must be appointed with the advice and consent of the Senate. See Edmond v. United\nStates, 520 U.S. 651, 662\xe2\x80\x9363 (1997); Morrison v. Olson, 487 U.S. 654,\n670\xe2\x80\x9372 (1988). The Attorney General has broad and continuing authority\nover the federal government\xe2\x80\x99s law-enforcement, litigation, and other legal\nfunctions. See, e.g., 28 U.S.C. \xc2\xa7\xc2\xa7 516, 533. The Supreme Court has not\n\xe2\x80\x9cset forth an exclusive criterion for distinguishing between\xe2\x80\x9d inferior\nofficers and principal officers. Edmond, 520 U.S. at 661. \xe2\x80\x9cGenerally\nspeaking, the term \xe2\x80\x98inferior officer\xe2\x80\x99 connotes a relationship with some\nhigher ranking officer or officers below the President.\xe2\x80\x9d Id. at 662. There\nis no officer below the President who supervises the Attorney General.\n9\n\n\x0c42 Op. O.L.C. __ (Nov. 14, 2018)\n\nAlthough the Attorney General is a principal officer, it does not follow\nthat an Acting Attorney General should be understood to be one. An\noffice under the Appointments Clause requires both a \xe2\x80\x9ccontinuing and\npermanent\xe2\x80\x9d position and the exercise of \xe2\x80\x9csignificant authority pursuant to\nthe laws of the United States.\xe2\x80\x9d Lucia v. SEC, 138 S. Ct. 2044, 2051 (2018)\n(internal quotation marks omitted); see also Officers of the United States\nWithin the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 74\n(2007). While a person acting as the Attorney General surely exercises\nsufficient authority to be an \xe2\x80\x9cOfficer of the United States,\xe2\x80\x9d it is less clear\nwhether Acting Attorney General is a principal office.\nBecause that question involves the division of powers between the\nExecutive and the Legislative Branches, \xe2\x80\x9chistorical practice\xe2\x80\x9d is entitled\nto \xe2\x80\x9csignificant weight.\xe2\x80\x9d Nat\xe2\x80\x99l Labor Relations Bd. v. Noel Canning, 134\nS. Ct. 2550, 2559 (2014); see also, e.g., The Pocket Veto Case, 279 U.S.\n655, 689 (1929). That practice strongly supports the constitutionality of\nauthorizing someone who has not been Senate-confirmed to serve as an\nacting principal officer. Since 1792, Congress has repeatedly legislated on\nthe assumption that temporary service as a principal officer does not\nrequire Senate confirmation. As for the Executive Branch\xe2\x80\x99s practice, our\nnon-exhaustive survey has identified over 160 occasions between 1809\nand 1860 on which non-Senate-confirmed persons served temporarily as\nan acting or ad interim principal officer in the Cabinet.\nFurthermore, judicial precedents culminating in United States v. Eaton,\n169 U.S. 331 (1898), endorsed that historical practice and confirm that the\ntemporary nature of acting service weighs against principal-officer status.\nThe Supreme Court in Eaton held that an inferior officer may perform the\nduties of a principal officer \xe2\x80\x9cfor a limited time[] and under special and\ntemporary conditions\xe2\x80\x9d without \xe2\x80\x9ctransform[ing]\xe2\x80\x9d his office into one for\nwhich Senate confirmation is required. Id. at 343. That holding was not\nlimited to the circumstances of that case, but instead reflected a broad\nconsensus about the status of an acting principal officer that the Supreme\nCourt has continued to rely on in later Appointments Clause decisions.\n1.\nSince the Washington Administration, Congress has \xe2\x80\x9cauthoriz[ed] the\nPresident to direct certain officials to temporarily carry out the duties of\na vacant PAS office [i.e., one requiring Presidential Appointment and\nSenate confirmation] in an acting capacity, without Senate confirmation.\xe2\x80\x9d\n10\n\n\x0cDesignating an Acting Attorney General\n\nSW General, 137 S. Ct. at 934; see also Noel Canning, 134 S. Ct. at 2609\n(Scalia, J., dissenting in relevant part) (observing that the President does\nnot need to use recess appointments to fill vacant offices because \xe2\x80\x9cCongress can authorize \xe2\x80\x98acting\xe2\x80\x99 officers to perform the duties associated with\na temporarily vacant office\xe2\x80\x94and has done that, in one form or another,\nsince 1792\xe2\x80\x9d). Those statutes, and evidence of practice under them during\nthe early nineteenth century, did not limit the pool of officials eligible to\nserve as an acting principal officer to those who already have Senateconfirmed offices. This history provides compelling support for the conclusion that the position of an acting principal officer is not itself a principal office.\nIn 1792, Congress first \xe2\x80\x9cauthorized the appointment of \xe2\x80\x98any person or\npersons\xe2\x80\x99 to fill specific vacancies in the Departments of State, Treasury,\nand War.\xe2\x80\x9d SW General, 137 S. Ct. at 935 (quoting Act of May 8, 1792,\nch. 37, \xc2\xa7 8, 1 Stat. 279, 281). Although the statute expressly mentioned\nvacancies in the position of Secretary in each of those Departments, the\nPresident was authorized to choose persons who held no federal office at\nall\xe2\x80\x94much less one requiring Senate confirmation. Although the 1792\nstatute \xe2\x80\x9callowed acting officers to serve until the permanent officeholder\ncould resume his duties or a successor was appointed,\xe2\x80\x9d Congress \xe2\x80\x9cimposed a six-month limit on acting service\xe2\x80\x9d in 1795. Id. at 935 (citing Act\nof Feb. 13, 1795, ch. 21, 1 Stat. 415). In 1863, in response to a plea from\nPresident Lincoln, see Message to Congress (Jan. 2, 1863), Cong. Globe,\n37th Cong., 3d Sess. 185 (1863), Congress extended the provision to\npermit the President to handle a vacancy in the office of \xe2\x80\x9cthe head of any\nExecutive Department of the Government, or of any officer of either of\nthe said Departments whose appointment is not in the head thereof.\xe2\x80\x9d Act\nof Feb. 20, 1863, ch. 45, \xc2\xa7 1, 12 Stat. 656, 656. The 1863 statute allowed\nthe duties of a vacant office to be performed for up to six months by \xe2\x80\x9cthe\nhead of any other Executive Department\xe2\x80\x9d or by any other officer in those\ndepartments \xe2\x80\x9cwhose appointment is vested in the President.\xe2\x80\x9d Id.\nIn 1868, Congress replaced all previous statutes on the subject of vacancies with the Vacancies Act of 1868. See Act of July 23, 1868, ch.\n227, 15 Stat. 168. That act provided that, \xe2\x80\x9cin case of the death, resignation, absence, or sickness of the head of any executive department of the\ngovernment, the first or sole assistant thereof shall . . . perform the duties\nof such head until a successor be appointed or the absence or sickness\nshall cease.\xe2\x80\x9d Id. \xc2\xa7 1, 15 Stat. at 168. In lieu of elevating the \xe2\x80\x9cfirst or sole\nassistant,\xe2\x80\x9d the President could also choose to authorize any other officer\n11\n\n\x0c42 Op. O.L.C. __ (Nov. 14, 2018)\n\nappointed with the Senate\xe2\x80\x99s advice and consent to perform the duties\nof the vacant office until a successor was appointed or the prior occupant\nof the position was able to return to his post. Id. \xc2\xa7 3, 15 Stat. at 168. In\ncases of death or resignation, an acting official could serve for no longer\nthan ten days. Id. The 1868 act thus eliminated the President\xe2\x80\x99s prior\ndiscretion to fill a vacant office temporarily with someone who did not\nhold a Senate-confirmed position. Yet, it preserved the possibility that a\nnon-Senate-confirmed first assistant would serve as an acting head of an\nexecutive department.\nOver the next 120 years, Congress repeatedly amended the Vacancies\nAct of 1868, but it never eliminated the possibility that a non-Senateconfirmed first assistant could serve as an acting head of an executive\ndepartment. In 1891, it extended the time limit for acting service in cases\nof death or resignation from ten to thirty days. Act of Feb. 6, 1891, ch.\n113, 26 Stat. 733. In 1966, it made minor changes during the course of recodifying and enacting title 5 of the United States Code. See S. Rep. No.\n89-1380, at 20, 70\xe2\x80\x9371 (1966); 5 U.S.C. \xc2\xa7\xc2\xa7 3345\xe2\x80\x933349 (1970). Congress\namended the act once more in 1988, extending the time limit on acting\nservice from 30 to 120 days and making the statute applicable to offices\nthat are not in \xe2\x80\x9cDepartments\xe2\x80\x9d and thus are less likely to have Senateconfirmed first assistants. Pub. L. No. 100-398, \xc2\xa7 7(b), 102 Stat. 985, 988\n(1988).\nAccordingly, for more than two centuries before the Vacancies Reform\nAct, Congress demonstrated its belief that the Appointments Clause did\nnot require Senate confirmation for temporary service in a principal\noffice, by repeatedly enacting statutes that affirmatively authorized acting\nservice\xe2\x80\x94even in principal offices at the heads of executive departments\xe2\x80\x94\nby persons who did not already hold an appointment made with the Senate\xe2\x80\x99s advice and consent.\n2.\nNot only did Congress authorize the Presidents to select officials to\nserve temporarily as acting principal officers, but Presidents repeatedly\nexercised that power to fill temporarily the vacancies in their administrations that arose from resignations, terminations, illnesses, or absences\nfrom the seat of government. In providing this advice, we have not canvassed the entire historical record. But we have done enough to confirm\nthat Presidents often exercised their powers under the 1792 and 1795\n12\n\n\x0cDesignating an Acting Attorney General\n\nstatutes to choose persons who did not hold any Senate-confirmed position to act temporarily as principal officers in various departments. In the\nWashington, Adams, and Jefferson Administrations, other Cabinet officers (or Chief Justice John Marshall) were used as temporary or \xe2\x80\x9cad interim\xe2\x80\x9d officials when offices were vacant between the departure of one\nofficial and the appointment of his successor. See, e.g., Biographical\nDirectory of the American Congress, 1774\xe2\x80\x931971, at 13\xe2\x80\x9314 (1971); see id.\nat 12 (explaining that the list of Cabinet officers excludes \xe2\x80\x9c[s]ubordinates\nacting temporarily as heads of departments\xe2\x80\x9d and therefore lists only those\nwho served ad interim after an incumbent\xe2\x80\x99s departure).\nPresident Jefferson made the first designation we have identified of a\nnon-Senate-confirmed officer to serve temporarily in his Cabinet. On\nFebruary 17, 1809, approximately two weeks before the end of the Jefferson Administration, John Smith, the chief clerk of the Department of War,\nwas designated to serve as Acting Secretary of War. See id. at 14; Letter\nfrom Thomas Jefferson to the War Department (Feb. 17, 1809), National\nArchives, Founders Online, https://founders.archives.gov/documents/\nJefferson/99-01-02-9824 (\xe2\x80\x9cWhereas, by the resignation of Henry Dearborne, late Secretary at War, that office is become vacant. I therefore do\nhereby authorize John Smith, chief clerk of the office of the Department\nof War, to perform the duties of the said office, until a successor be appointed.\xe2\x80\x9d). As chief clerk, Smith was not a principal officer. He was\ninstead \xe2\x80\x9can inferior officer . . . appointed by the [Department\xe2\x80\x99s] principal\nofficer.\xe2\x80\x9d Act of Aug. 5, 1789, ch. 6, \xc2\xa7 2, 1 Stat. 49, 50. The next Secretary\nof War did not enter upon duty until April 8, 1809, five weeks after the\nbeginning of the Madison Administration. See Biographical Directory\nat 14.\nBetween 1809 and 1860, President Jefferson\xe2\x80\x99s successors designated a\nnon-Senate-confirmed officer to serve as an acting principal officer in a\nCabinet position on at least 160 other occasions. We have identified 106\nadditional instances during that period where chief clerks, who were not\nSenate confirmed, temporarily served as ad interim Secretary of State (on\n48 occasions), Secretary of the Treasury (on 33 occasions), or Secretary\nof War (on 25 occasions). See id. at 15\xe2\x80\x9319; 1 Trial of Andrew Johnson,\nPresident of the United States, Before the Senate of the United States, on\nImpeachment by the House of Representatives for High Crimes and Misdemeanors 575\xe2\x80\x9381, 585\xe2\x80\x9388, 590\xe2\x80\x9391 (Washington, GPO 1868); In re\nAsbury Dickins, Rep. C.C. 9, 34th Cong., 1st Sess. at 4\xe2\x80\x935 (Ct. Cl. 1856)\n(listing 18 times between 1829 and 1836 that chief clerk Asbury Dickins\n13\n\n\x0c42 Op. O.L.C. __ (Nov. 14, 2018)\n\nwas \xe2\x80\x9cappointed to perform the duties of Secretary of the Treasury\xe2\x80\x9d or\nSecretary of State \xe2\x80\x9cduring the absence from the seat of government or\nsickness\xe2\x80\x9d of those Secretaries, for a total of 359 days). 6 Between 1851 and\n1855 there were also at least 21 occasions on which non-Senate-confirmed Assistant Secretaries were authorized to act as Secretary of the\nTreasury.7\nWe have also identified instances involving designations of persons\nwho apparently had no prior position in the federal government, including\nAlexander Hamilton\xe2\x80\x99s son, James A. Hamilton, whom President Jackson\ndirected on his first day in office to \xe2\x80\x9ctake charge of the Department of\nState until Governor [Martin] Van Buren should arrive in the city\xe2\x80\x9d three\nweeks later. 1 Trial of Andrew Johnson at 575; see Biographical Directo6 See also Act of July 27, 1789, ch. 4, \xc2\xa7 2, 1 Stat. 28, 29 (providing that the chief clerk\nin what became the Department of State was \xe2\x80\x9can inferior officer, to be appointed by the\n[Department\xe2\x80\x99s] principal officer\xe2\x80\x9d); Act of Sept. 2, 1789, ch. 12, \xc2\xa7 1, 1 Stat. 65, 65\n(providing for an \xe2\x80\x9cAssistant to the Secretary of the Treasury,\xe2\x80\x9d later known as the chief\nclerk, who \xe2\x80\x9cshall be appointed by the said Secretary\xe2\x80\x9d). The sources cited in the text above\nindicate that (1) the following chief clerks served as ad interim Secretary of State: Aaron\nOgden Dayton, Aaron Vail (twice), Asbury Dickins (10 times), Daniel Carroll Brent\n(5 times), Daniel Fletcher Webster, Jacob L. Martin (3 times), John Appleton, John\nGraham, Nicholas Philip Trist (4 times), Richard K. Cralle, William S. Derrick (12 times),\nWilliam Hunter (7 times); (2) the following chief clerks served as ad interim Secretary of\nthe Treasury: Asbury Dickins (8 times), John McGinnis, and McClintock Young (24\ntimes); and (3) the following chief clerks (or acting chief clerks) served as ad interim\nSecretary of War: Albert Miller Lee, Archibald Campbell (5 times), Carey A. Harris\n(4 times), Christopher Vandeventer, George Graham, John D. McPherson, John Robb\n(6 times), Philip G. Randolph (4 times), Samuel J. Anderson, and William K. Drinkard.\nEditor\xe2\x80\x99s Note: As originally issued, this footnote and accompanying text referred to a\ntotal of 109, rather than 106, instances. Some had been inadvertently counted twice and\nCarey A. Harris had been omitted because the Biographical Directory identifies him as\nthe Commissioner of Indian Affairs though he did not assume that position until later. The\ntotal number of known instances between 1809 and 1860 remains more than 160 because,\nafter the opinion was issued, we confirmed three additional examples in which persons\nwithout any Senate-confirmed position served as an ad interim Secretary: William S.\nDerrick was ad interim Secretary of State while serving as Clerk for the Diplomatic\nBureau; Samuel H. Porter was ad interim Secretary of War while serving as Agent for the\nOffice of the Commissioner of Indian Affairs; and Mahlon Dickerson was ad interim\nSecretary of War before becoming the Secretary of the Navy. See 1 Trial of Andrew\nJohnson at 577, 578, 579.\n7 See 1 Trial of Andrew Johnson at 580\xe2\x80\x9381, 590\xe2\x80\x9391 (entries for William L. Hodge and\nPeter Washington); Act of Mar. 3, 1849, ch. 108, \xc2\xa7 13, 9 Stat. 395, 396\xe2\x80\x9397 (providing for\nappointment by the Secretary of an \xe2\x80\x9cAssistant Secretary of the Treasury\xe2\x80\x9d).\n\n14\n\n\x0cDesignating an Acting Attorney General\n\nry at 16. President Jackson also twice named William B. Lewis, who held\nno other government position, as acting Secretary of War. See 1 Trial of\nAndrew Johnson at 575. Moving beyond the offices expressly covered by\nthe 1792 and 1795 statutes, there were at least 23 additional instances\nbefore 1861 in which Presidents authorized a non-Senate-confirmed chief\nclerk to perform temporarily the duties of the Secretary of the Navy (on\n21 occasions) or the Secretary of the Interior (on 2 occasions). 8\nAt the time, it was well understood that when an Acting or ad interim\nSecretary already held an office such as chief clerk, he was not simply\nperforming additional duties, but he was deemed the Acting Secretary.\nWe know this, because the chief clerks sometimes sought payment for the\nperformance of those additional duties. Attorney General Legar\xc3\xa9 concluded that Chief Clerk McClintock Young had a claim for compensation as\n\xe2\x80\x9cSecretary of the Treasury ad interim.\xe2\x80\x9d Pay of Secretary of the Treasury\nad Interim, 4 Op. Att\xe2\x80\x99y Gen. 122, 122\xe2\x80\x9323 (1842). And the Court of\nClaims later concluded that Congress should appropriate funds to compensate such officers for that service. See, e.g., In re Cornelius Boyle,\nRep. C.C. 44, 34th Cong., 3d Sess. at 9, 1857 WL 4155, at *4 (Ct. Cl.\n1857) (\xe2\x80\x9cThe office of Secretary ad interim being a distinct and independent office in itself, when it is conferred on the chief clerk, it is so conferred not because it pertains to him ex officio, but because the President,\nin the exercise of his discretion, sees fit to appoint him[.]\xe2\x80\x9d); Dickins, Rep.\nC.C. 9, at 16, 1856 WL 4042, at *3.\nCongress not only acquiesced in such appointments, but also required\na non-Senate-confirmed officer to serve as a principal officer in some\ninstances. In 1810, Congress provided that in the case of a vacancy in the\noffice of the Postmaster General, \xe2\x80\x9call his duties shall be performed by his\nsenior assistant.\xe2\x80\x9d Act of Apr. 30, 1810, ch. 37, \xc2\xa7 1, 2 Stat. 592, 593. The\nsenior assistant was one of two assistants appointed by the Postmaster\nGeneral. Id. When Congress reorganized the Post Office in 1836, it again\nrequired that the powers and duties of the Postmaster General would, in\nthe case of \xe2\x80\x9cdeath, resignation, or absence\xe2\x80\x9d \xe2\x80\x9cdevolve, for the time being\non the First Assistant Postmaster General,\xe2\x80\x9d who was still an appointee of\n8\n\nSee Biographical Directory at 14\xe2\x80\x9317 (chief clerks of the Navy in 1809, 1814\xe2\x80\x9315,\n1829, 1831, and 1841); id. at 18 (chief clerk of the Department of the Interior, Daniel\nC. Goddard, in 1850 (twice)); In re Cornelius Boyle, Rep. C.C. 44, 34th Cong., 3d Sess. at\n3, 12\xe2\x80\x9313 (Ct. Cl. 1857) (identifying 13 times between 1831 and 1838 that chief clerk John\nBoyle was appointed as Acting Secretary of the Navy, for a total of 466 days).\n\n15\n\n\x0c42 Op. O.L.C. __ (Nov. 14, 2018)\n\nthe Postmaster General. Act of July 2, 1836, ch. 270, \xc2\xa7 40, 5 Stat. 80, 89.\nOn four occasions before 1860, a First Assistant Postmaster General\nserved as Postmaster General ad interim. See Biographical Directory at\n17\xe2\x80\x9319 (in 1841 (twice), 1849, and 1859).\nOn the eve of the Civil War in January 1861, President Buchanan\nsummarized the Chief Executive\xe2\x80\x99s view of his authority to designate\ninterim officers in a message submitted to Congress to explain who had\nbeen performing the duties of the Secretary of War:\nThe practice of making . . . appointments [under the 1795 statute],\nwhether in a vacation or during the session of Congress, has been\nconstantly followed during every administration from the earliest period of the government, and its perfect lawfulness has never, to my\nknowledge, been questioned or denied. Without going back further\nthan the year 1829, and without taking into the calculation any but\nthe chief officers of the several departments, it will be found that\nprovisional appointments to fill vacancies were made to the number\nof one hundred and seventy-nine . . . . Some of them were made\nwhile the Senate was in session, some which were made in vacation\nwere continued in force long after the Senate assembled. Sometimes,\nthe temporary officer was the commissioned head of another department, sometimes a subordinate in the same department.\nMessage from the President of the United States, S. Exec. Doc. No. 2,\n36th Cong., 2d Sess. at 1\xe2\x80\x932 (Jan. 15, 1861) (emphases added).\n3.\nWhen it comes to vacancy statutes, the office of Attorney General presents an unusual case, albeit not one suggesting any different constitutional treatment. The office was established in the Judiciary Act of 1789, see\nAct of Sept. 24, 1789, ch. 20, \xc2\xa7 35, 1 Stat. 73, 93, and the Attorney General was a member of the President\xe2\x80\x99s Cabinet, see Office and Duties of\nAttorney General, 6 Op. Att\xe2\x80\x99y Gen. 326, 330 (1854). But the Attorney\nGeneral did not supervise an \xe2\x80\x9cexecutive department,\xe2\x80\x9d and the Department\nof Justice was not established until 1870. See Act of June 22, 1870, ch.\n150, \xc2\xa7 1, 16 Stat. 162, 162. Thus, the terms of the 1792, 1795, and 1863\nstatutes, and of the Vacancies Act of 1868, did not expressly apply to\nvacancies in the office of the Attorney General.\n\n16\n\n\x0cDesignating an Acting Attorney General\n\nEven so, the President made \xe2\x80\x9ctemporary appointment[s]\xe2\x80\x9d to the office\nof Attorney General on a number of occasions. In 1854, Attorney General\nCushing noted that \xe2\x80\x9cproof exists in the files of the department that temporary appointment has been made by the President in that office.\xe2\x80\x9d Office\nand Duties of Attorney General, 6 Op. Att\xe2\x80\x99y Gen. at 352. Because the\n1792 and 1795 statutes did not provide the President with express authority for those temporary appointments, Cushing believed it \xe2\x80\x9cquestionable\xe2\x80\x9d\nwhether the President had the power, but he also suggested that \xe2\x80\x9c[p]erhaps\nthe truer view of the question is to consider the two statutes as declaratory\nonly, and to assume that the power to make such temporary appointment\nis a constitutional one.\xe2\x80\x9d Id. Cushing nonetheless recommended the enactment of \xe2\x80\x9ca general provision . . . to remove all doubt on the subject\xe2\x80\x9d for\nthe Attorney General and \xe2\x80\x9cother non-enumerated departments.\xe2\x80\x9d Id.\nCongress did not immediately remedy the problem that Cushing identified, but Presidents designated Acting Attorneys General, both before and\nafter the Cushing opinion. In some instances, the President chose an\nofficer who already held another Senate-confirmed office. See Acting\nAttorneys General, 8 Op. O.L.C. 39, 40\xe2\x80\x9341 (1984) (identifying instances\nin 1848 and 1868 involving the Secretary of the Navy or the Secretary of\nthe Interior).9 In other instances, however, non-Senate-confirmed individuals served. After the resignation of Attorney General James Speed, for\ninstance, Assistant Attorney General J. Hubley Ashton was the ad interim\nAttorney General from July 17 to July 23, 1866. See id. at 41; Biographical Directory at 20. At the time, the Assistant Attorney General was\nappointed by the Attorney General alone. See Act of March 3, 1859, ch.\n80, 11 Stat. 410, 420 (\xe2\x80\x9c[T]he Attorney-General . . . is hereby[] authorized\nto appoint one assistant in the said office, learned in the law, at an annual\nsalary of three thousand dollars[.]\xe2\x80\x9d).10\n9\n\nThis list is almost certainly under-inclusive because the published sources we have\nlocated identify only those who were Acting Attorney General during a period between\nthe resignation of one Attorney General and the appointment of his successor. They do\nnot identify individuals who may have performed the functions and duties of Attorney\nGeneral when an incumbent Attorney General was temporarily unavailable on account\nof an absence or sickness that would now trigger either 28 U.S.C. \xc2\xa7 508(a) or 5 U.S.C.\n\xc2\xa7 3345(a).\n10 In 1868, Congress created two new Assistant Attorneys General positions to be \xe2\x80\x9cappointed by the President, by and with the advice and consent of the Senate,\xe2\x80\x9d and specified\nthat those positions were \xe2\x80\x9cin lieu of,\xe2\x80\x9d among others, \xe2\x80\x9cthe assistant attorney-general now\nprovided for by law,\xe2\x80\x9d which was \xe2\x80\x9cabolished\xe2\x80\x9d effective on July 1, 1868. Act of June 25,\n\n17\n\n\x0c42 Op. O.L.C. __ (Nov. 14, 2018)\n\nOn other occasions between 1859 and 1868, Ashton and other Assistant\nAttorneys General who had not been Senate confirmed also signed several\nformal legal opinions as \xe2\x80\x9cActing Attorney General,\xe2\x80\x9d presumably when\ntheir incumbent Attorney General was absent or otherwise unavailable.\nSee Case of Colonel Gates, 11 Op. Att\xe2\x80\x99y Gen. 70, 70 (1864) (noting that\nthe question from the President \xe2\x80\x9creached this office in [the Attorney\nGeneral\xe2\x80\x99s] absence\xe2\x80\x9d).11 In 1873, when Congress reconciled the Vacancies\nAct of 1868 with the Department of Justice\xe2\x80\x99s organic statute, it expressly\nexcepted the office of Attorney General from the general provision granting the President power to choose who would temporarily fill a vacant\nSenate-confirmed office. See Rev. Stat. \xc2\xa7 179 (1st ed. 1875), 18 Stat. pt.\n1, at 27. There is accordingly no Attorney General-specific practice with\nrespect to the pre-1998 statutes.\nB.\nWell before the Supreme Court\xe2\x80\x99s foundational decision in Eaton in\n1898, courts approved of the proposition that acting officers are entitled to\npayment for services during their temporary appointments as principal\nofficers. See, e.g., United States v. White, 28 F. Cas. 586, 587 (C.C.D.\nMd. 1851) (Taney, Circuit J.) (\xe2\x80\x9c[I]t often happens that, in unexpected\ncontingencies, and for temporary purposes, the appointment of a person\nalready in office, to execute the duties of another office, is more convenient and useful to the public, than to bring in a new officer to execute the\nduty.\xe2\x80\x9d); Dickins, Rep. C.C. 9, at 17, 1856 WL 4042, at *3 (finding a chief\nclerk was entitled to additional compensation \xe2\x80\x9cfor his services[] as acting\n1868, ch. 71, \xc2\xa7 5, 15 Stat. 75, 75. A few weeks later, Ashton was confirmed by the Senate\nas an Assistant Attorney General. See S. Exec. J., 40th Cong. 2d Sess. 369 (July 25,\n1868). He was therefore holding a Senate-confirmed office when he served another stint\nas Acting Attorney General for several days at the beginning of the Grant Administration\nin March 1869, see Biographical Directory at 21, and when he signed five opinions as\n\xe2\x80\x9cActing Attorney General\xe2\x80\x9d in September and October 1868.\n11 There were two additional opinions signed by Ashton as \xe2\x80\x9cActing Attorney General\xe2\x80\x9d\nin 1864 and 1865 (11 Op. Att\xe2\x80\x99y Gen. 482; 11 Op. Att\xe2\x80\x99y Gen. 127); as well as four signed\nas \xe2\x80\x9cActing Attorney General\xe2\x80\x9d by Assistant Attorney General John Binckley in 1867 (12\nOp. Att\xe2\x80\x99y Gen. 231; 12 Op. Att\xe2\x80\x99y Gen. 229; 12 Op. Att\xe2\x80\x99y Gen 222; 12 Op. Att\xe2\x80\x99y Gen.\n227); two signed as \xe2\x80\x9cActing Attorney General\xe2\x80\x9d by Assistant Attorney General Titian J.\nCoffey in 1862 and 1863 (10 Op. Att\xe2\x80\x99y Gen. 492; 10 Op. Att\xe2\x80\x99y Gen. 377); and one signed\nas \xe2\x80\x9cActing Attorney General\xe2\x80\x9d by Assistant Attorney General Alfred B. McCalmont in\n1859 (9 Op. Att\xe2\x80\x99y Gen. 389).\n\n18\n\n\x0cDesignating an Acting Attorney General\n\nSecretary of the Treasury and as acting Secretary of State\xe2\x80\x9d). Most significantly, in Boyle, the Court of Claims concluded that the chief clerk of the\nNavy (who was not Senate confirmed) had properly served as Acting\nSecretary of the Navy on an intermittent basis over seven years for a total\nof 466 days. Rep. C.C. 44, at 8, 1857 WL 4155, at *1\xe2\x80\x932 (1857). The court\nexpressly addressed the Appointments Clause question and distinguished,\nfor constitutional purposes, between the office of Secretary of the Navy\nand the office of Acting Secretary of the Navy. Id. at 8, 1857 WL 4155 at\n*3 (\xe2\x80\x9cIt seems to us . . . plain that the office of Secretary ad interim is a\ndistinct and independent office in itself. It is not the office of Secretary[.]\xe2\x80\x9d). Furthermore, the court emphasized, the defining feature of the\noffice of Secretary ad interim was its \xe2\x80\x9ctemporary\xe2\x80\x9d character, and it must\ntherefore be considered an inferior office:\nCongress has exercised the power of vesting the appointment of a\nSecretary ad interim in the President alone, and we think, in perfect\nconsistency with the Constitution of the United States. We do not\nthink that there can be any doubt that he is an inferior officer, in the\nsense of the Constitution, whose appointment may be vested by\nCongress in the President alone.\nId.\nWhen the Supreme Court addressed this Appointments Clause issue in\n1898, it reached a similar conclusion. In United States v. Eaton, the Court\nconsidered whether Congress could authorize the President alone to\nappoint a subordinate officer \xe2\x80\x9ccharged with the duty of temporarily performing the functions\xe2\x80\x9d of a principal officer. 169 U.S. at 343. The statute\nauthorized the President \xe2\x80\x9cto provide for the appointment of vice-consuls\n. . . in such manner and under such regulations as he shall deem proper.\xe2\x80\x9d\nId. at 336 (quoting Rev. Stat. \xc2\xa7 1695 (2d ed. 1878), 18 Stat. pt. 1, at 303\n(repl. vol.)). The President\xe2\x80\x99s regulation provided that \xe2\x80\x9c[i]n case a vacancy\noccurs in the offices both of the consul and the vice-consul, which requires the appointment of a person to perform temporarily the duties of\nthe consulate, the diplomatic representative has authority to make such\nappointment, with the consent of the foreign government . . . immediate\nnotice being given to the Department of State.\xe2\x80\x9d Id. at 338 (quoting regulation). Pursuant to that authority, Sempronius Boyd, who was the diplomatic representative and consul-general to Siam, appointed Lewis Eaton\n(then a missionary who was not employed by the government) as a viceconsul-general and directed him to take charge of the consulate after\n19\n\n\x0c42 Op. O.L.C. __ (Nov. 14, 2018)\n\nBoyd\xe2\x80\x99s departure. Id. at 331\xe2\x80\x9332. With the \xe2\x80\x9cknowledge\xe2\x80\x9d and \xe2\x80\x9capproval\xe2\x80\x9d of\nthe Department of State, Eaton remained in charge of the consulate, at\ntimes calling himself \xe2\x80\x9cacting consul-general of the United States at Bangkok,\xe2\x80\x9d from July 12, 1892, until a successor vice-consul-general arrived on\nMay 18, 1893. Id. at 332\xe2\x80\x9333. In a dispute between Boyd\xe2\x80\x99s widow and\nEaton over salary payments, the Court upheld Eaton\xe2\x80\x99s appointment, and\nthe underlying statutory scheme, against an Appointments Clause challenge. Id. at 334\xe2\x80\x9335, 352.\nThe Constitution expressly includes \xe2\x80\x9cConsuls\xe2\x80\x9d in the category of officers whose appointment requires the Senate\xe2\x80\x99s advice and consent. U.S.\nConst. art. II, \xc2\xa7 2, cl. 2. The Eaton Court, however, concluded that a\n\xe2\x80\x9cvice-consul\xe2\x80\x9d is an inferior officer whose appointment Congress may\n\xe2\x80\x9cvest in the President\xe2\x80\x9d alone. 169 U.S. at 343. The Court held that Eaton\xe2\x80\x99s\nexercise of the authority of a Senate-confirmed office did not transform\nhim into an officer requiring Senate confirmation:\nBecause the subordinate officer is charged with the performance of\nthe duty of the superior for a limited time and under special and\ntemporary conditions, he is not thereby transformed into the superior\nand permanent official. To so hold would render void any and every\ndelegation of power to an inferior to perform under any circumstances or exigency the duties of a superior officer, and the discharge of\nadministrative duties would be seriously hindered.\nId. The Court concluded that more than forty years of practice \xe2\x80\x9csustain the\ntheory that a vice-consul is a mere subordinate official,\xe2\x80\x9d which defeated\nthe contention that Eaton\xe2\x80\x99s appointment required Senate confirmation. Id.\nat 344. In so doing, the Court cited Attorney General Cushing\xe2\x80\x99s 1855\nopinion about appointments of consular officials, which had articulated\nthe parameters for that practice. See id.12 Significantly, the Court also\nmade clear that its holding was not limited to vice-consuls or to the exigencies of Eaton\xe2\x80\x99s particular appointment. Rather, the Court emphasized\nthat the temporary performance of a principal office is not the same as\nholding that office itself. The Court feared that a contrary holding would\n\nIn the 1855 opinion, Attorney General Cushing explained that a vice-consul is \xe2\x80\x9cthe\nperson employed to fill the [consul\xe2\x80\x99s] place temporarily in his absence.\xe2\x80\x9d Appointment of\nConsuls, 7 Op. Att\xe2\x80\x99y Gen. 242, 262 (1855). He noted that consuls had to be Senateconfirmed, but vice-consuls were regarded as the \xe2\x80\x9csubordinates of consuls\xe2\x80\x9d and therefore\ndid not require \xe2\x80\x9cnomination to the Senate.\xe2\x80\x9d Id. at 247.\n12\n\n20\n\n\x0cDesignating an Acting Attorney General\n\nbear upon \xe2\x80\x9cany and every delegation of power to an inferior to perform\nunder any circumstances or exigency.\xe2\x80\x9d Id. at 343 (emphasis added). In\nview of the long history of such appointments, Eaton simply confirmed\nthe general rule. It did not work any innovation in that practice.\nThe Court has not retreated from Eaton, or narrowed its holding, but\ninstead has repeatedly cited the decision for the proposition that an inferior officer may temporarily perform the duties of a principal officer without Senate confirmation. In Edmond, the Court observed that \xe2\x80\x9c\xe2\x80\x98inferior\nofficers\xe2\x80\x99 are officers whose work is directed and supervised at some level\nby others who were appointed by Presidential nomination with the advice\nand consent of the Senate.\xe2\x80\x9d 520 U.S. at 663. But the Court also observed\nthat there is no \xe2\x80\x9cexclusive criterion for distinguishing between principal\nand inferior officers\xe2\x80\x9d and restated Eaton\xe2\x80\x99s holding that \xe2\x80\x9ca vice consul\ncharged temporarily with the duties of the consul\xe2\x80\x9d is an \xe2\x80\x9cinferior\xe2\x80\x9d officer.\nId. at 661. In Morrison, the Court emphasized that a subordinate who\nperformed a principal officer\xe2\x80\x99s duties \xe2\x80\x9cfor a limited time and under special and temporary conditions\xe2\x80\x9d is not \xe2\x80\x9cthereby transformed into the superior and permanent official,\xe2\x80\x9d and explained that a vice-consul appointed\nduring the consul\xe2\x80\x99s \xe2\x80\x9ctemporary absence\xe2\x80\x9d remained a \xe2\x80\x9csubordinate officer\nnotwithstanding the Appointment Clause\xe2\x80\x99s specific reference to \xe2\x80\x98Consuls\xe2\x80\x99\nas principal officers.\xe2\x80\x9d 487 U.S. at 672\xe2\x80\x9373 (quoting Eaton, 169 U.S. at\n343). Justice Scalia\xe2\x80\x99s dissenting opinion in Morrison similarly described\nEaton as holding that \xe2\x80\x9cthe appointment by an Executive Branch official\nother than the President of a \xe2\x80\x98vice-consul,\xe2\x80\x99 charged with the duty of\ntemporarily performing the function of the consul, did not violate the\nAppointments Clause.\xe2\x80\x9d Id. at 721 (Scalia, J., dissenting). Likewise, in his\ndissenting opinion in Free Enterprise Fund v. Public Company Accounting Oversight Board, 537 F.3d 667 (D.C. Cir. 2008), aff \xe2\x80\x99d in part and\nrev\xe2\x80\x99d in part, 561 U.S. 447 (2010), then-Judge Kavanaugh cited Eaton to\nestablish that \xe2\x80\x9c[t]he temporary nature of the office is the . . . reason that\nacting heads of departments are permitted to exercise authority without\nSenate confirmation.\xe2\x80\x9d Id. at 708 n.17 (Kavanaugh, J., dissenting). Notably, Judge Kavanaugh also cited our 2003 opinion, which concluded that\nan OMB official who was not Senate confirmed could serve as Acting\nDirector of OMB. See id. (citing Acting Director of OMB, 27 Op. O.L.C.\nat 123).\nIn SW General, the Court acknowledged the long history of Acts of\nCongress permitting the President to authorize officials to temporarily\nperform the functions of vacant offices requiring Senate approval. 137\n21\n\n\x0c42 Op. O.L.C. __ (Nov. 14, 2018)\n\nS. Ct. at 935. Although the Court\xe2\x80\x99s opinion did not address the Appointments Clause, Justice Thomas\xe2\x80\x99s concurring opinion suggested that a\npresidential directive to serve as an officer under the Vacancies Reform\nAct should be viewed as an appointment, and that such a direction would\n\xe2\x80\x9craise[] grave constitutional concerns because the Appointments Clause\nforbids the President to appoint principal officers without the advice and\nconsent of the Senate.\xe2\x80\x9d Id. at 946. But Justice Thomas also distinguished\nEaton on the ground that the acting designation at issue in SW General\nwas not \xe2\x80\x9cspecial and temporary\xe2\x80\x9d because it had remained in place \xe2\x80\x9cfor\nmore than three years in offices limited by statute to a 4-year term.\xe2\x80\x9d Id. at\n946 n.1. Justice Thomas\xe2\x80\x99s opinion may therefore be understood to be\nconsistent not only with Eaton, but also with the precedents of this Office,\nwhich have found it \xe2\x80\x9cimplicit\xe2\x80\x9d that \xe2\x80\x9cthe tenure of an Acting Director\nshould not continue beyond a reasonable time.\xe2\x80\x9d Continuing Service of\nDeputy Director of OMB as Acting Director During Vacancy, 1 Op.\nO.L.C. 287, 289\xe2\x80\x9390 (1977). Even under Justice Thomas\xe2\x80\x99s opinion, Mr.\nWhitaker\xe2\x80\x99s designation as Acting Attorney General, which was made one\nweek ago, and which would lapse in the absence of a presidential nomination, should qualify as \xe2\x80\x9cspecial and temporary\xe2\x80\x9d under Eaton.\nC.\nExecutive practice and more recent legislation reinforces that an inferior officer may temporarily act in the place of a principal officer. In 1980,\nfor instance, this Office raised no constitutional concerns in concluding\n(in the context of a non-executive office) that the Comptroller General\nwas statutorily authorized to \xe2\x80\x9cdesignate an employee\xe2\x80\x9d of the General\nAccounting Office to be Acting Comptroller General during the absence\nor incapacity of both the Senate-confirmed Comptroller General and the\nSenate-confirmed Deputy Comptroller General. Authority of the Comptroller General to Appoint an Acting Comptroller General, 4B Op. O.L.C.\n690, 690\xe2\x80\x9391 (1980).\nMost significantly, in 2003, this Office relied on Eaton in concluding\nthat, although \xe2\x80\x9cthe position of Director [of OMB] is a principal office, . . .\nan Acting Director [of OMB] is only an inferior officer.\xe2\x80\x9d Acting Director\nof OMB, 27 Op. O.L.C. at 123. We did not think that that conclusion had\nbeen called into question by Edmond \xe2\x80\x99s statement that an inferior officer is\none who reports to a superior officer below the President, because in that\ncase \xe2\x80\x9c[t]he Court held only that \xe2\x80\x98[g]enerally speaking\xe2\x80\x99 an inferior officer\n22\n\n\x0cDesignating an Acting Attorney General\n\nis subordinate to an officer other than the President,\xe2\x80\x9d and because Edmond\ndid not deal with temporary officers. 27 Op. O.L.C. at 124 (citations\nomitted). Assuming that for constitutional purposes the official designated\nas acting head of an agency would need to be an inferior officer (and that\nthe OMB official in question was not already such an officer), we further\nconcluded that the President\xe2\x80\x99s designation of an acting officer under the\nAct should be regarded as an appointment by the President alone\xe2\x80\x94\na constitutionally permissible mode for appointing an inferior officer.\nId. at 125. Since then, Presidents George W. Bush and Obama each used\ntheir authority under the Vacancies Reform Act to place non -Senateconfirmed Chiefs of Staff in the lines of succession to be the acting head\nof several federal agencies. 13 In three instances, President Obama placed a\nChief of Staff above at least one Senate-confirmed officer within the same\ndepartment. 14 And, in practice, during the Bush, Obama, and Trump\nAdministrations, multiple unconfirmed officers were designated to serve\nas acting agency heads, either under the Vacancies Reform Act or another\n\n13 See Memorandum, Designation of Officers of the Social Security Administration, 71\nFed. Reg. 20333 (Apr. 17, 2006); Memorandum, Designation of Officers of the Council\non Environmental Quality, 73 Fed. Reg. 54487 (Sept. 18, 2008) (later superseded by 2017\nmemorandum cited below); Memorandum, Designation of Officers of the Overseas\nPrivate Investment Corporation to Act as President of the Overseas Private Investment\nCorporation, 76 Fed. Reg. 33613 (June 6, 2011); Memorandum, Designation of Officers\nof the Millennium Challenge Corporation to Act as Chief Executive Officer of the Millennium Challenge Corporation, 77 Fed. Reg. 31161 (May 21, 2012); Memorandum,\nDesignation of Officers of the General Services Administration to Act as Administrator of\nGeneral Services, 78 Fed. Reg. 59161 (Sept. 20, 2013); Memorandum, Designation of\nOfficers of the Office of Personnel Management to Act as Director of the Office of\nPersonnel Management, 81 Fed. Reg. 54715 (Aug. 12, 2016); Memorandum, Providing an\nOrder of Succession Within the National Endowment of the Humanities, 81 Fed. Reg.\n54717 (Aug. 12, 2016); Memorandum, Providing an Order of Succession Within the\nNational Endowment of the Arts, 81 Fed. Reg. 96335 (Dec. 23, 2016); Memorandum,\nDesignation of Officers or Employees of the Office of Science and Technology Policy to\nAct as Director, 82 Fed. Reg. 7625 (Jan. 13, 2017); Memorandum, Providing an Order of\nSuccession Within the Council on Environmental Quality, 82 Fed. Reg. 7627 (Jan. 13,\n2017).\n14 See Executive Order 13612, Providing an Order of Succession Within the Department of Agriculture, 77 Fed. Reg. 31153 (May 21, 2012); Executive Order 13735, Providing an Order of Succession Within the Department of the Treasury, 81 Fed. Reg. 54709\n(Aug. 12, 2016); Executive Order 13736, Providing an Order of Succession Within the\nDepartment of Veterans Affairs, 81 Fed. Reg. 54711 (Aug. 12, 2016).\n\n23\n\n\x0c42 Op. O.L.C. __ (Nov. 14, 2018)\n\noffice-specific statute. 15 Those determinations reflect the judgments of\nthese administrations that the President may lawfully designate an unconfirmed official, including a Chief of Staff, to serve as an acting principal\nofficer.\nCongress too has determined in the Vacancies Reform Act and many\nother currently operative statutes that non-Senate-confirmed officials may\ntemporarily perform the functions of principal officers. By its terms, the\nVacancies Reform Act applies to nearly all executive offices for which\nappointment \xe2\x80\x9cis required to be made by the President, by and with the\nadvice and consent of the Senate.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3345(a); see id. \xc2\xa7 3349c(1)\xe2\x80\x93\n(3) (excluding only certain members of multi-member boards, commissions, or similar entities). And it specifically provides for different treatment in some respects depending on whether the vacant office is that of\nan agency head. Id. \xc2\xa7 3348(b)(2). Moreover, the statute contemplates that\nnon-Senate-confirmed officials will be able to serve as acting officers in\ncertain applications of section 3345(a)(1) as well as in all applications of\nsection 3345(a)(3), which refers to an \xe2\x80\x9cofficer or employee.\xe2\x80\x9d The latter\nprovision had no counterpart in the Vacancies Act of 1868, but it was not\ncompletely novel, because clerks, who were not Senate-confirmed, were\n\n15\n\nFor example, during this administration, Grace Bochenek, a non-Senate-confirmed\nlaboratory director, served as Acting Secretary of Energy from January 20, 2017, until\nMarch 2, 2017; Tim Horne, a non-Senate-confirmed Regional Commissioner, served as\nActing Administrator of the General Services Administration from January 20, 2017, until\nDecember 12, 2017 (pursuant to a designation under a GSA-specific statute); Phil Rosenfelt, a non-Senate-confirmed Deputy General Counsel, served as Acting Secretary of\nEducation from January 20, 2017, until February 7, 2017 (pursuant to a designation under\na statute specific to that department); Don Wright, a non-Senate-confirmed Deputy\nAssistant Secretary, served as Acting Secretary of Health and Human Services from\nSeptember 30, 2017, until October 10, 2017; Peter O\xe2\x80\x99Rourke, a non-Senate-confirmed\nChief of Staff, served as Acting Secretary of Veterans Affairs from May 29, 2018, until\nJuly 30, 2018; and Shelia Crowley, a non-Senate-confirmed Chief of Operations, served,\nupon President\xe2\x80\x99s Obama\xe2\x80\x99s designation, as Acting Director of the Peace Corps from\nJanuary 20, 2017, until November 16, 2017. During the Obama administration, Darryl\nHairston, a career employee, served as Acting Administrator of the Small Business\nAdministration from January 22, 2009, until April 6, 2009, and Edward Hugler, a non Senate-confirmed Deputy Assistant Secretary, served as Acting Secretary of Labor from\nFebruary 2, 2009, until February 24, 2009. During the Bush Administration, Augustine\nSmythe, a non-Senate-confirmed Executive Associate Director served as Acting Director\nof OMB from June 10, 2003, until late June 2003, consistent with our opinion.\n\n24\n\n\x0cDesignating an Acting Attorney General\n\nroutinely authorized to serve as acting officers under the 1792 and 1795\nstatutes.16\nCongress has also enacted various statutes that enable deputies not confirmed by the Senate to act when the office of the Senate-confirmed agency head is vacant. See 12 U.S.C. \xc2\xa7 4512(f ) (providing for an Acting Director of the Federal Housing Finance Agency); id. \xc2\xa7 5491(b)(5) (providing\nfor an Acting Director of the Bureau of Consumer Financial Protection);\n21 U.S.C. \xc2\xa7 1703(a)(3) (providing for an Acting Director of the Office of\nNational Drug Control Policy); 40 U.S.C. \xc2\xa7 302(b) (providing for an\nActing Administrator of the General Services Administration); 44 U.S.C.\n\xc2\xa7 2103(c) (providing for an Acting Archivist). All of those provisions\ncontemplate the temporary service of non-Senate-confirmed officials as\nacting principal officers, and these statutes would appear to be unconstitutional if only a Senate-confirmed officer could temporarily serve as an\nacting principal officer.\nSimilarly, other current statutes provide that, although the deputy is\nappointed by the President with the Senate\xe2\x80\x99s advice and consent, the\nPresident or the department head may designate another official to act\nas the agency head, even though that official is not Senate-confirmed.\nSee 20 U.S.C. \xc2\xa7 3412(a)(1) (providing that \xe2\x80\x9c[t]he Secretary [of Education]\nshall designate the order in which other officials of the Department shall\nact for and perform the functions of the Secretary . . . in the event of\nvacancies in both\xe2\x80\x9d the Secretary and Deputy Secretary positions); 31\nU.S.C. \xc2\xa7 502(f ) (providing that the President may designate \xe2\x80\x9can officer of\nthe Office [of Management and Budget] to act as Director\xe2\x80\x9d); 38 U.S.C.\n\xc2\xa7 304 (providing that the Deputy Secretary of Veterans Affairs serves as\nActing Secretary \xe2\x80\x9c[u]nless the President designates another officer of the\nGovernment\xe2\x80\x9d); 42 U.S.C. \xc2\xa7 7132(a) (providing that \xe2\x80\x9c[t]he Secretary [of\nEnergy] shall designate the order in which the Under Secretary and other\nofficials shall act for and perform the functions of the Secretary . . . in the\nevent of vacancies in both\xe2\x80\x9d the Secretary and Deputy Secretary positions);\n49 U.S.C. \xc2\xa7 102(e) (providing that the Secretary of Transportation shall\n\n16 Echoing the movement in the early nineteenth century to chief clerks rather than\nSenate-confirmed officials from other departments, section 3345(a)(3) was reportedly the\nproduct of a desire to give the President \xe2\x80\x9cmore flexibility\xe2\x80\x9d to use \xe2\x80\x9cqualified individuals\nwho have worked within the agency in which the vacancy occurs for a minimum number\nof days and who are of a minimum grade level.\xe2\x80\x9d S. Rep. No. 105-250, at 31 (additional\nviews of Sen. Glenn et al.); id. at 35 (minority views of Sens. Durbin and Akaka).\n\n25\n\n\x0c42 Op. O.L.C. __ (Nov. 14, 2018)\n\nestablish an order of succession that includes Assistant Secretaries who\nare not Senate-confirmed for instances in which the offices of the Secretary, Deputy Secretary, and Under Secretary of Transportation for Policy\nare vacant); 40 U.S.C. \xc2\xa7 302(b) (providing that the Deputy Administrator\nserves as Acting Administrator of General Services when that office \xe2\x80\x9cis\nvacant,\xe2\x80\x9d \xe2\x80\x9cunless the President designates another officer of the Federal\nGovernment\xe2\x80\x9d); cf. 44 U.S.C. \xc2\xa7 304 (limiting the individuals whom the\nPresident may choose to serve as Acting Director of the Government\nPrinting Office to those who occupy offices requiring presidential appointment with the Senate\xe2\x80\x99s advice and consent).\nIndeed, if it were unconstitutional for an official without Senate confirmation to serve temporarily as an acting agency head, then the recent\ncontroversy over the Acting Director of the CFPB should have been\nresolved on that ground alone\xe2\x80\x94even though it was never raised by any\nparty, the district court, or the judges at the appellate argument. On November 24, 2017, the Director of the CFPB appointed a new Deputy\nDirector, expecting that she would become the Acting Director upon his\nresignation later that day. Acting Director of CFPB, 41 Op. O.L.C. __,\nat *2 n.1. The Director of the CFPB relied on 12 U.S.C. \xc2\xa7 5491(b)(5),\nwhich expressly contemplates that a non-Senate-confirmed official (the\nDeputy Director) will act as a principal officer (the Director). The President, however, exercised his authority under 5 U.S.C. \xc2\xa7 3345(a)(2) to\ndesignate the Director of OMB as Acting Director of the CFPB. See\nEnglish, 279 F. Supp. 3d at 330. When the Deputy Director challenged the\nPresident\xe2\x80\x99s action, we are not aware that anyone ever contended that the\nDeputy Director was constitutionally ineligible to serve as Acting Director because she had not been confirmed by the Senate. If the newly installed Deputy Director of the CFPB could lawfully have become the\nActing Director, then the Chief of Staff to the Attorney General may serve\nas Acting Attorney General in the case of a vacancy.\nD.\nThe constitutionality of Mr. Whitaker\xe2\x80\x99s designation as Acting Attorney\nGeneral is supported by Supreme Court precedent, by acts of Congress\npassed in three different centuries, and by countless examples of executive practice. To say that the Appointments Clause now prohibits the\nPresident from designating Mr. Whitaker as Acting Attorney General\nwould mean that the Vacancies Reform Act and a dozen statutes were\n26\n\n\x0cDesignating an Acting Attorney General\n\nunconstitutional, as were countless prior instances of temporary service\ngoing back to at least the Jefferson Administration.\nThere is no question that Senate confirmation is an important constitutional check on the President\xe2\x80\x99s appointments of senior officers. The\nSenate\xe2\x80\x99s role \xe2\x80\x9cserves both to curb Executive abuses of the appointment\npower, and to promote a judicious choice of [persons] for filling the\noffices of the union.\xe2\x80\x9d Edmond, 520 U.S. at 659 (internal quotation marks\nomitted). At the same time, the \xe2\x80\x9cconstitutional process of Presidential\nappointment and Senate confirmation . . . can take time: The President\nmay not promptly settle on a nominee to fill an office; the Senate may be\nunable, or unwilling, to speedily confirm the nominee once submitted.\xe2\x80\x9d\nSW General, 137 S. Ct. at 935. Despite their frequent disagreements over\nnominees, for over 200 years, Congress and the President have agreed\nupon the value and permissibility of using temporary appointments,\npursuant to limits set by Congress, in order to overcome the delays of the\nconfirmation process.\nIf the President could not rely on temporary designations for principal\noffices, then the efficient functioning of the Executive Branch would be\nseverely compromised. Because most Senate-confirmed officials resign at\nthe end of an administration, a new President must rely on acting officials\nto serve until nominees have been confirmed. If Senate confirmation were\nrequired before anyone could serve, then the Senate could frustrate the\nappropriate functioning of the Executive Branch by blocking the confirmation of principal officers for some time. See 144 Cong. Rec. 27496\n(Oct. 21, 1998) (statement of Sen. Thompson) (noting that section\n3345(a)(3) had been added because \xe2\x80\x9c[c]oncerns had been raised that,\nparticularly early in a presidential administration, there will sometimes\nbe vacancies in first assistant positions, and that there will not be a large\nnumber of Senate-confirmed officers in the government,\xe2\x80\x9d as well as\n\xe2\x80\x9cconcerns . . . about designating too many Senate-confirmed persons from\nother offices to serve as acting officers in additional positions\xe2\x80\x9d). A political dispute with the Senate could frustrate the President\xe2\x80\x99s ability to execute the laws by delaying the appointment of his principal officers.\nThe problems with a contrary rule are not limited to the beginning of an\nadministration. Many agencies would run into problems on an ongoing\nbasis, because they have few officers subject to Senate confirmation.\nThus, when a vacancy in the top spot arises, such an agency would either\nlack a head or be forced to rely upon reinforcements from Senateconfirmed appointees outside the agency. Those outside officers may be\n27\n\n\x0c42 Op. O.L.C. __ (Nov. 14, 2018)\n\ninefficient choices when a non-Senate-confirmed officer within the agency is more qualified to act as a temporary caretaker. At best, designating\na Senate-confirmed officer to perform temporary services would solve\na problem at one agency only by cannibalizing the senior personnel of\nanother.\nIt is true that these concerns do not apply to the current circumstances\nof the Department of Justice, which is staffed by a number of Senateconfirmed officers. Following Attorney General Sessions\xe2\x80\x99s resignation,\nthe President could have relied upon the Deputy Attorney General, the\nSolicitor General, or an Assistant Attorney General to serve as Acting\nAttorney General. But the availability of potential alternatives does not\ndisable Congress from providing the President with discretion to designate other persons under section 3345(a)(3) of the Vacancies Reform Act.\nNothing in the text of the Constitution or historical practice suggests that\nthe President may turn to an official who has not been confirmed by the\nSenate if, but only if, there is no appropriate Senate-confirmed official\navailable.\nIII.\nThe President\xe2\x80\x99s designation to serve as Acting Attorney General of\na senior Department of Justice official who does not currently hold a\nSenate-confirmed office is expressly authorized by 5 U.S.C. \xc2\xa7 3345(a)(3).\nMr. Whitaker has been designated based upon a statute that permits him\nto serve as Acting Attorney General for a limited period, pending the\nSenate\xe2\x80\x99s consideration of a nominee for Attorney General. Consistent\nwith our 2003 opinion, with Eaton, and with two centuries of practice,\nwe advised that his designation would be lawful.\nSTEVEN A. ENGEL\nAssistant Attorney General\nOffice of Legal Counsel\n\n28\n\n\x0c'