Let's read the Constitution!

The day after the 2018 mid-term elections Jeff Sessions submitted his resignation, and the president appointed Matthew Whitaker to serve as acting attorney general. Whitaker was Sessions's chief of staff, and it was from this position that the president elevated him to acting attorney general. All without giving so much as a sideways glance at the Constitution. 

The Constitution empowers the president to "nominate, and by and with the advice and consent of the Senate, . . . appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for . . . ." U.S. Const. Art. II, sec. 2. The Constitution's Appointments Clause also provides that "the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments." Thus, the Constitution creates two classes of officers, i.e., principal and inferior. Although the line between these two classes is unclear, there is no doubt that the office of the attorney general is a principal office. And the founders had very good reasons for requiring that principal officers be nominated by and with the advice and consent of the Senate. 

In arguing in favor of the Appointments Clause, Hamilton recognized three ways for appointing principal officers. This power could "be vested in a single man, or in a SELECT assembly of a moderate number; or in a single man, with the concurrence of such an assembly."  Federalist No. 76 The drafters of the Constitution were concerned about the danger of placing the power to appoint principal officers of the government in the hands of one person. Alexander Hamilton explained this in Federalist No. 76:

        To what purpose then require the co-operation of the Senate? I answer, that the

        necessity of their concurrence would have a powerful, though, in general, a 

        silent operation. It would be an excellent check upon a spirit of favoritism in the

        President, and would tend greatly to prevent the appointment of unfit characters 

        from State prejudice, from family connection, from personal attachment, or 

        from a view to popularity. In addition to this, it would be an efficacious source 

        of stability in the administration.

        It will readily be comprehended, that a man who had himself the sole disposition 

        of offices, would be governed much more by his private inclinations and interests, 

        than when he was bound to submit the propriety of his choice to the discussion 

        and determination of a different and independent body, and that body an entire 

        branch of the legislature. The possibility of rejection would be a strong motive to 

        care in proposing. The danger to his own reputation, and, in the case of an 

        elective magistrate, to his political existence, from betraying a spirit of favoritism, 

        or an unbecoming pursuit of popularity, to the observation of a body whose 

        opinion would have great weight in forming that of the public, could not fail to 

        operate as a barrier to the one and to the other. He would be both ashamed and 

        afraid to bring forward, for the most distinguished or lucrative stations, candidates 

        who had no other merit than that of coming from the same State to which he

        particularly belonged, or of being in some way or other personally allied to him, 

        or of possessing the necessary insignificance and pliancy to render them the

        obsequious instruments of his pleasure. 

Federalist No. 76 

The back-and-forth as to whether the president could appoint Whitaker has included discussion of the Federal Vacancies Reform Act . The Act allows the president to "direct an officer of employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity . . . ." 5 U.S.C. § 3345(a)(3). The Federal Vacancies Reform Act is an attempt to allow the president to avoid the Appointments Clause. In Justice Thomas's concurring opinion in NLRA v. SW General, Inc. he argued that in an appropriate case, the Court should find this Act to be unconstitutional. Justice Thomas's view is based on the language of the Appointments Clause. This Act encourages the very thing that concerned the drafters, i.e., "the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” NLRA v. SW General, Inc. (Thomas J., concurring). Presidents will always seek to increase executive power in the face of a weak or lazy Congress.

Some will argue that even the First Congress allowed the president to make temporary appointments. This is true, but that doesn't make it constitutional. For example, Congress passed the Alien and Sedition Acts during John Adams's administration, but this was no less unconstitutional merely because those present or alive at the drafting of the Constitution approved it.  

Trump should seek the advice of those who can instruct him in the constitutional requirements for appointing the attorney general. The Constitution is not a set of suggestions to be followed or ignored as convenience dictates. 

Migrants sue Trump!

Lawsuits will not solve America's immigration problems.

Some of the participants in the caravan from the Northern Triangle have hired a D.C. lawyer and filed a lawsuit against the president, the attorney general, and various other federal officials. When you read the complaint, it becomes clear that this lawsuit, like the caravan, is a stunt. And neither the caravan nor the lawsuit is intended to help anyone who really needs it. The purpose of the lawsuit is to get a district court judge to prevent the government from denying asylum to caravan participants. Once this is done, the plaintiffs will argue that the government cannot follow its normal procedures.

The plaintiffs claim that Trump's declaration that U.S. troops will stop the caravan from entering the U.S. "is shockingly unconstitutional." The plaintiffs assert that the Fifth Amendment's due process clause prevents the government from acting. The plaintiffs, however, do not have constitutional rights. "An alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application . . . ." Landon v. Plasencia, 459 U.S. 21, 33 (1982). It is only after "the alien gains admission to our country and begins to develop the ties that go with permanent residence [that] his constitutional status changes accordingly." Id. The fundamental rule that "'aliens receive constitutional protections [only] when they have come within the territory of the United States and developed substantial connections with the country'" still applies. Vang v. Gonzales, 237 Fed.Appx. 24, 29 (6th Cir. 2007) (quoting United States v. Vedugo-Urquidez, 494 U.S. 259, 271 (1990)). But the lawsuit is really intended to force the government's hand under the Flores agreement. An agreement that resulted from a lawsuit filed in 1985 and was never intended to apply to situations beyond the facts that created it. The insurmountable problem is that Flores is based on the Fifth Amendment's due process clause, and the members of the caravan, not having entered the U.S., do not have the protection of the Constitution. 

               The Flores lawsuit.

In 1985, Jenny Lisette Flores was a 15-year-old girl who left El Salvador hoping to find her aunt who lived in the United States. Jenny was caught at the U.S. border and detained in pitiful detention conditions. At the time, unaccompanied children were kept in conditions that included being detained with unrelated adults and in unsanitary conditions. The length of these detentions depended on how quickly the government processed the cases. Rather than release Jenny to her aunt, the government took the view that unaccompanied children could be released only to their parents. After 12 years, the  Flores case was settled.  

The settlement agreement required the government to release unaccompanied children as soon as possible and in no event could they be detained more than 20 days. The agreement specified the persons or entities to whom the children could be released: (1) parents, (2) legal guardians, (3) adult relatives, (4) an adult designated by the parents or the legal guardians as capable of caring for the children, (5) a licensed program willing to accept legal custody, or (6) an adult individual or entity seeking custody when there are no reasonable alternatives to long-term detention. The Flores agreement led to rules that addressed the length of time during which unaccompanied children could be kept in detention and the conditions in which they could be held. 

During the Obama administration, there was an increase in the number of Central American families seeking asylum. To deter asylum seekers, the Obama administration decided to keep families in detention and deport them as soon as the process could be completed. In response to a legal challenge, the court held that the plan violated the Flores agreement. The Court of Appeals for the Ninth Circuit decided that the Flores agreement prevented the government from detaining the children for the purpose of deterring asylum seekers. This broadened the Flores agreement from unaccompanied children to all children and led to the problem of separating children from their parents. Although the Ninth Circuit did not hold that the agreement required the release of parents, the government began releasing the parents and the children because the three detention facilities were full. The government has two options: (1) separate the children from their parents to satisfy the terms of the Flores agreement, or (2) release families pending resolution of asylum petitions or the criminal charges of illegal entry. The latter often leads to the government losing track of the released families. 

Where's Congress?

Although our government consists of three branches, only two of the three have appeared on stage. Missing from this is the most important branch: Congress. Congress, the law-making branch, prefers to sit in the wings and carp about what is going on, rather than accepting its role and trying to fix the immigration mess.

So without Congress taking action, we are left with the Judicial Branch fumbling its way through lawsuits that are not capable of, nor is it this branch's job, developing a coherent immigration policy. And the Executive Branch will continue to react to situations as they arise. The results are usually less than desirable. Congress should listen to Senators Grassley, Cruz, and Tillis and act.