Who Can Serve as Acting Attorney General (LSB10217, Nov. 15, 2018) discusses the two primary arguments raised to challenge the President’s decision to name Whitaker as Acting AG: first, that the Vacancies Act does not apply because another statute, 28 U.S.C. §508, provides that the Deputy Attorney General (DAG) serves as Acting AG in the event of a vacancy and second, that the Appointments Clause prohibits Whitaker, a non-Senate-confirmed official, from serving as the head of the DOJ.
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