Day: January 30, 2017

Replacing Acting Attorney General Sally Yates under the Federal Vacancies Reform Act of 1998

Tonight at 9:16 P.M, White House Press Secretary tweeted that Acting Attorney General Sally Yates has been relieved, and President named Dana Boente, the U.S. Attorney for the Eastern District of Virginia as acting Attorney General. (If only Nixon had Twitter during the Saturday Evening Massacre).

The White House released a statement saying that Yates “betrayed the Department of Justice.”


How does this work? The Federal Vacancies Reform Act of 1998 provides the general framework for what happens when an officer is removed. Generally, under 5 U.S.C. § 3345(b)(1), in the event of a vacancy, “the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity.” However, that is not the only path. 5 U.S.C. § 3345(b)(2) states that “notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity.” In other words, rather than the “first assistant” being promoted to acting officer, the President could appoint anyone else who has received Senate confirmation–such as a U.S. Attorney–to temporarily fill that vacancy.

That is precisely what happened here.

Update: This thread captures more of my thoughts.

Update 2: did the President select, of all officers, the U.S. Attorney for the Eastern District of Virginia? Under an executive order signed by President Obama on 2010, the U.S. Attorney for E.D.Va. is first in line.

One other note. The order is triggered if the Acting Attorney General has “died, resigned, or otherwise been unable to perform the functions and duties of the office of Attorney General.” I have been researching the emphasized portion, and it has never been litigated whether this includes firing. Now, Trump has set an executive-branch precedent that it does. This will be relevant for the repealing and replacing of Richard Cordray, which gave rise to this entire post.

Update 3: The Executive Order I cited above was revoked by President Obama on January 13, 2017, and a new order changed the order of succession to put the U.S. Attorney for the District of Columbia first in line. He perhaps anticipated Trump would fire Yates…


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Guest on “This World” on Australian Broadcasting Channel to Discuss Trump’s Executive Order on Immigration

On Monday, January 30, I was a guest on the Australian Broadcasting Channel’s primetime program “This World” to discuss President Trump’s executive action on immigration. My primary goal was to convey the chaos created by this unexpected order, which at a minimum, should not have impacted people already in transit. I also discussed the possible constitutional challenges that lie ahead.

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Google Honors Fred Korematsu’s Birthday

I don’t know if this Doodle was pre-planned, but the timing is impeccable.

This is a photograph of Korematsu wearing the Congressional Medal of Freedom, given to him by President Clinton in 1998. Also, in the background are representations of the barracks at the detention camp.

For my recent lecture on Korematu v. United States, and the other Japanese detention cases, see here.

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The Anatomy of a Twitter Response: “Yes X is partially correct, but Y is more correct.”

Without any coordination, countless Twitter replies have spontaneously adopted a very similar format. First, the reply notes that a person’s tweet is correct, or at least partially correct. This foray gives the responder some credibility, and sensibility–he is after all attempting to find some common ground. That sentiment is immediately followed by a conjunction, such as “but” or “however.” Following the conjunction, the responder states what is really correct.

To state it differently: “Yes X is partially correct, but Y is more correct.”

Consider a few easy examples:

  • Yes President Obama took broad executive executives, but President Trump’s actions far more egregious.
  • Sure Justice Scalia said some inappropriate things, however Justice Ginsburg’s statements about Trump cross a line.
  • It is true that the ACA is not working perfectly, but don’t forget that Republicans have spent the last 7 years sabotaging it.

Once you see it, you can never unsee it. I’ve endeavored not to use this frame in any of my Twitter replies. Pardon me if I slip.

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Video: “The Fate of Obamacare” at University of Pennsylvania Federalist Society

On Wednesday, January 25, the University of Pennsylvania Federalist Society Chapter hosted me for a discussion of the “The Fate of Obamacare in the Trump Administration.” Professor Kermit Roosevelt kindly provided commentary. This talk provides an overview of where Obamacare has been since 2010, and where it will likely go.

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