Acting AG Matthew G. Whitaker Lacks Authority to Decide Immigration Case, Say Immigration Groups

The American Immigration Council and other immigrant rights organizations have filed a legal brief that explains why President Donald Trump’s designation of Matthew G. Whitaker as acting attorney general is unlawful. As a result, the brief asserts, Whitaker lacks the authority to decide a critical immigration case.

In November 2018, President Trump appointed Whitaker in an acting position to replace former Attorney General Jeff Sessions as head of the Department of Justice. The amicus (friend of the court) brief argues that Whitaker’s designation is unconstitutional, and therefore, he lacks authority to exercise the powers of the head of the Justice Department. These powers include referring already-decided immigration cases to himself in order to revisit their holdings.

The brief was filed in Matter of Negusie, a case in which Sessions referred to himself the question of whether asylum seekers found to be persecutors may continue to qualify for asylum by showing they acted under coercion or duress. Sessions invoked a federal regulation that allows the attorney general to reconsider cases already decided by the Board of Immigration Appeals—the body that hears appeals from immigration courts nationwide—but he resigned from office before deciding the case.

The brief argues that Whitaker’s designation as acting attorney general violates the Appointments Clause of the Constitution and a specific federal statute governing succession to the Office of the Attorney General. Also outlined in the brief are the critical flaws in the Department of Justice’s Office of Legal Counsel’s opinion that was issued to defend Whitaker’s designation.

“Implicit in the authority granted to the attorney general over immigration cases is the legality of his or her appointment,” said Trina Realmuto, directing attorney at the American Immigration Council. “The improper appointment of the acting attorney general not only is unlawful, but undermines the rule of law that the head of the Justice Department is obligated to uphold.”

“We can add the Appointments Clause to the long and growing list of constitutional protections this president has overrun. The result here is that Mr. Negusie’s fate could be decided by an illegitimate attorney general. It would be a travesty if the U.S. Justice Department, the agency responsible for law enforcement, followed such a lawless path,” said Robert N. Weiner, partner at the law firm of Arnold & Porter.

The amicus brief was authored by the Council and the law firm of Arnold & Porter Kaye Scholer LLP. ASISTA Immigration Assistance, Harvard Immigration and Refugee Clinical Program, Her Justice, Immigrant Defense Project, Northwest Immigrant Rights Project, and Southern Poverty Law Center are signatories to the brief.

You can view the full brief online here.