How to Make Temporary "Acting" Officers Accountable

The selection of Matthew Whitaker to be acting attorney general in 2018 directed unprecedented attention toward a previously little- studied constitutional question. Whitaker was a relatively obscure figure in the Department of Justice, and he was not serving in a Senate- confirmed position at the time of his selection. How could it be constitutional for someone whom the Senate had neither vetted nor approved to lead the Department of Justice? Yet challenges to the constitutionality of Whitaker's service all failed in court. Whitaker's service seemed in clear tension with basic constitutional principles, but courts felt bound by a century- old precedent to uphold it. That unusual state of affairs is the subject of my new article in the Georgetown Journal of Law & Public Policy.