Trump is one risky move away from a constitutional crisis: conservative think tank

President Donald Trump is at risk of violating the Constitution through his Cabinet picks, a Libertarian scholar recently warned — although right now he appears to be on the right side of the law.

Describing Trump’s decision to keep Todd Blanche as acting attorney general and Keith Sonderling as acting labor secretary, in lieu of Pam Bondi and Lori Chavez-DeRemer respectively, a scholar from the prestigious Cato Institute warned that the president is walking a very fine line.

“Almost all vacancies in the executive branch are governed by the Federal Vacancies Reform Act (FVRA) of 1998, which sets uniform rules of who can be an acting officer and how long they can serve,” Thomas A. Berry, the director of the Cato Institute’s Robert A. Levy Center for Constitutional Studies and editor in chief of the Cato Supreme Court Review, wrote on Monday. “But when the FVRA was enacted, about 40 separate statutes were on the books that provided different special rules for how acting officers may fill particular offices. The offices of attorney general and secretary of labor are both covered by such specific statutes. In 1998, Congress chose to retain these statutes rather than repeal them through the Vacancies Act. (This was, in part, a political judgment that the bill was more likely to be signed by the president if these alternative statutes were retained.)”

He added, “Since 1998, a few more offices have been created that also have special acting statutes, such as the Department of Homeland Security secretary and the Consumer Financial Protection Bureau (CFPB) director. In the FVRA’s Senate report, Congress showed it was aware of retaining these alternative acting officer statutes.”

This means that, because the laws for both acting attorneys general and acting labor secretaries do not have time limits, Trump can keep Blanche and Sonderling in their positions without congressional approval for as long as he likes. Yet there is a catch to using the FVRA for this purpose.

“They typically limit the choice of acting officer to only one person, the deputy (or ‘first assistant’) to the vacant position,” Berry explained. “That is why both acting secretaries now are the respective deputy secretaries of their departments. The upshot is that so long as Trump is happy with the acting service of Blanche and Sonderling, they can remain as acting cabinet secretaries indefinitely, hypothetically for the remainder of the presidential term. But if Trump ever wishes to replace them with different acting secretaries, he will need to use the FVRA, and the FVRA’s time limits will then immediately kick in (calculated dating back to the time of the vacancy, not the time when Trump chooses to use the FVRA to make an appointment).”

Ultimately, Berry concluded that while he believed both Blanche and Sonderling are constitutionally eligible to serve indefinitely without congressional approval, “if President Trump replaces them via the FVRA with someone who either has not been confirmed to any position or has been confirmed to a position far afield from acting cabinet service, then I believe that appointment would be unconstitutional from day one.”

He concluded, “That was true of Matthew Whitaker’s service as acting attorney general during Trump’s first term. If another such unconfirmed person is tapped for acting service in the cabinet, it will tee up a constitutional question that the Supreme Court is long overdue in confronting.”

Earlier on Monday, Politico also discussed how Blanche’s appointment to replace Bondi may be extended through the aforementioned so-called “loophole.”

"Trump could extend Blanche’s temporary tenure past the 210-day limit if he nominates someone — including Blanche himself — to the job permanently. But Blanche could face a challenging confirmation process, especially after the midterms," Politico wrote. "Blanche, Trump’s former personal lawyer, has come under scrutiny over his loyalty to the president and controversial handling of the release of the Epstein files. If his — or any other — nomination fails, he could simply continue to occupy the acting attorney general post while a second nomination is pending."

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