The Constitution of the United States provides that the President of the United States can appoint federal officials and judges, but only with the ‘advice and consent’ of the Senate. In other words, before an officer or judge can take office, the Senate must vote and confirm the President’s nomination. This is an important example of checks and balances in the United States. The President’s power to appoint officials with the advice and consent of the Senate is known as the “Appointments Clause” (United States Constitution, Article II, Section 2, Clause 2).
The President and The Attorney General
The Attorney General is part of the Executive Branch of government and is the highest law enforcement officer in the United States. Until November 7, the Attorney General of the United States was Jeff Sessions. Mr. Sessions resigned. In his place, President Trump designated Matt Whittaker as the Acting Attorney General.
President Trump’s appointment of Mr. Whittaker concerned a number of people for several reasons. Among other things, there is concern that Mr. Whittaker was (i) involved in criminal activity and that (ii) President Trump appointed Mr. Whittaker because Whittaker is likely to be sympathetic to the President, who is suspected of illegal activity himself and is being investigated.
Another concern is that President Trump did not ask the Senate to confirm Mr. Whittaker’s appointment. Some people believe that by designating Mr. Whittaker without confirmation from the Senate, President Trump violated the Appointments Clause.
But who has standing to challenge Whittaker’s appointment as unconstitutional? Any person who wants to challenge President Trump’s appointment of Mr. Whittaker as unconstitutional will need to demonstrate that he or she has standing. Among other things, that party will need to show that he has been injured by Whittaker’s appointment.
Below is a video on standing:
A party filing a lawsuit must have standing. That is, the party must show that it has the legal right to seek a remedy from the Court. If the government acts unconstitutionally, courts will usually only allow a person injured by the unconstitutional activity to challenge the government in court.
The Appointments Clause
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…
Do Senators have Standing?
Several United States Senators filed a lawsuit in federal court, claiming that they have standing to challenge Whittaker’s appointment. They argue that because the President denied them the opportunity to vote on Whittaker’s designation as the Attorney General, and is denying them any future opportunity to vote on his appointment, the President injured them. These plaintiffs argue that a Senator has standing to challenge the President’s action as unconstitutional because the President denied them their right to vote and to fulfill their responsibilities as Senators.
Eventually, the federal court will need to rule on whether the Senators have standing.