One big question: Whether a temporary position is considered a principal role. In October 2016, Justice Clarence Thomas argued that even a temporary appointment of someone who was not confirmed by the Senate would violate the clause in the Constitution.
"When you put someone in an acting capacity, that person doesn’t occupy an official office, so the appointments clause doesn’t apply in this case at all. It’s temporary."
— David Rivkin, a constitutional lawyer who has served in previous administrations
The bottom line: Even John Yoo, a law professor at the University of California-Berkeley who helped the George W. Bush administration draft its expansive claims to executive power, says the Whitaker appointment may be out of line.
"The Constitution says that principal officers must go through appointment with the advice and consent of the Senate. In Morrison v. Olson, the Supreme Court made clear that the Attorney General is a principal officer. Therefore, Whittaker cannot serve as acting Attorney General despite the Vacancies Act (which does provide for him to be acting AG) — the statute is unconstitutional when applied in this way."
— John Yoo in an email
When donnie feels at a loss what to say, he consults his Book of Sixth-Grade Comebacks. It's perfect for him: he can usually handle the spelling, and his base can usually understand without pichers.
