The Unbearable Lightness of a Todd Blanche Confirmation Fight

President Trump has nominated Acting Attorney General Todd Blanche to be, well, the non-acting attorney general. Senate Democrats are loaded for bear as they await his July 15 confirmation hearing. Key Republicans are undecided. The two likeliest outcomes are Blanche gets confirmed and serves as attorney general for as long as Trump wants, or he doesn’t get confirmed and serves as attorney general for as long as Trump wants.

Sound odd? It’s due to the Attorney General Succession Act, codified at 28 U.S.C. § 508, which provides in pertinent part that “[i]n case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office.”

Those who closely follow the frequent vacancy drama of the Trump years may wonder how this squares with the Federal Vacancies Reform Act of 1998 (FVRA). That act imposes time limits on how long actings can serve. In some cases, however, the FVRA takes a back seat. This is such a case.

But how long can Blanche serve under § 508? The text of the act—unlike the text of the FVRA—sets forth no limit. Can Trump really use it as an end run around the confirmation process? Unlike in many Trump-era legal puzzles, we have a recent, non-Trump precedent for this.

Joe Biden’s Forever Nominee

In March 2023, Labor Secretary Marty Walsh resigned (to become, of all things, the head of the National Hockey League players’ union). Deputy Labor Secretary Julie Su became acting secretary via a statute similar to § 508, 29 U.S.C. § 552, which provides that “[t]he Deputy Secretary shall ... in case of the death, resignation, or removal from office of the Secretary, perform the duties of the Secretary until a successor is appointed.” President Biden promptly nominated Su to fill the vacancy, but objections from Sen. Joe Manchin (D-W.Va.) and Sen. Kyrsten Sinema (I-Ariz.), plus unified Republican opposition, doomed her nomination. Instead of nominating someone else—or even insisting that Su get a final vote on the Senate floor—the White House decided to rely on § 552 and keep her in place. Axios dubbed her “Biden’s forever nominee”; the Wall Street Journal summarized the president’s position as “So Su Me.”

Republicans were not happy. In July 2023, Rep. Virginia Foxx (R-N.C.), then chair of the House Committee on Education and the Workforce, wrote the head of the Government Accountability Office (GAO), which the FVRA itself tasked with monitoring compliance with the law, to ask how the two statutes intersected. GAO told her that Su “may continue to serve in that position until a successor is appointed.” She remained until President Biden’s last day.

The Nuts and Bolts of Vacancy Laws

Let’s dig into how these laws work, starting with the FVRA, which is codified at 5 U.S.C. §§ 3345-3349d. Section 3345 prescribes who may serve; § 3346 imposes time limits on such service. But § 3347 provides that “Sections 3345 and 3346 are the exclusive means for temporarily authorizing an acting official to perform the functions and duties” of a presidentially appointed, Senate-confirmed office unless “a statutory provision expressly ... designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity.”

Section 552, which covered Su, has long been recognized as just such a statutory provision, dating back to the passage of the FVRA itself. The Senate report that accompanied a near-final version of the FVRA included § 552 in a nonexhaustive list of 40 statutes that the drafters intended, per § 3347, as exceptions to the FVRA’s exclusivity. And if it’s encompassed by § 3347 then, by the terms of that section, § 3346—which sets forth time limits—would seem not to apply.

Indeed, every court that has considered this question has concluded that the time limits of the FVRA do not apply to statutory provisions contemplated by § 3347. This has come up in litigation involving Su, in three cases regarding the appointment of Chad Wolf to be acting secretary of homeland security (interpreting 6 U.S.C. § 113(g)(2)), and in litigation over an appointment to head the Federal Housing Finance Agency (FHFA) (interpreting 12 U.S.C. § 4512(f)). (In addition, GAO has reached the same conclusion with regard to the commissioner of the Social Security Administration, interpreting 42 U.S.C. § 902(b)(4).)

There is no reason to suspect that the outcome would be different in any challenge to Blanche’s tenure. The language of § 508 does not differ in any relevant respect from the language of the statutes noted in the preceding paragraph. In what appears to be the closest precedent, the U.S. Court of Appeals for the Eighth Circuit held in a 1975 case that an acting attorney general appointed pursuant to § 508 was not subject to the then-30-day time limit of an older vacancies act since superseded by the FVRA.

(Some have argued that § 508 is the only way to designate an acting attorney general. This came up in Trump’s first term; after axing his first attorney general, Jeff Sessions, Trump made Sessions’s chief of staff, Matthew Whitaker, the acting attorney general. The deputy attorney general at the time, Rod Rosenstein, had won Trump’s ire by appointing Robert Mueller as a special counsel, an act Trump said warranted Rosenstein’s incarceration. The few courts that reviewed the use of the FVRA to elevate Whitaker, who served for only three months, concluded that it was lawful.)

But even if the FVRA did apply, its time limits are quite generous. The clock starts ticking when the office becomes vacant—and then ticks very slowly. An acting appointee can serve for 210 days from the start of the vacancy, plus for as long as a first nomination for the position is pending, plus another 210 days after that nomination is returned to the president (which occurs on Jan. 3 for all then-pending nominations), then for as long as a second nomination is pending, and for a final 210 days if the second nomination is also returned to the president.

Thus, if § 508 didn’t exist, the FVRA could allow Blanche to serve as acting attorney general until Aug. 1, 2027, assuming that his current nomination stalls in the Senate and that—like Su—he is renominated by the president and then his second nomination also stalls. For the same reason, the 2023-2024 debate about whether the FVRA’s time limits applied to Su was academic, or at least premature: the FVRA would have allowed her to serve until August 2025, months into a hypothetical Kamala Harris administration. (There is one wrinkle: A separate law forbids paying any person serving in an acting position if that person had twice been nominated unsuccessfully for the job. Thus the final 210-day stretch might have to be unpaid.)

The Appointments Clause

An attempt to challenge Blanche’s indefinite tenure might rely on the Appointments Clause, which requires that “principal officers” be appointed by the president and confirmed by the Senate. Such a challenger would argue that, even if an acting attorney general may serve for a limited period of time, allowing an acting attorney general to serve for nearly three years—from Pam Bondi’s departure to the end of Trump’s term—violates the Constitution. In 2022, a divided panel of the U.S. Court of Appeals for the Sixth Circuit concluded that the acting head of the FHFA, Edward DeMarco, violated the Appointments Clause by serving for three years under President Obama pursuant to a statute similar to § 508. (DeMarco served over four years in total, but the case involved a challenge to actions he took after serving three years in office.) In dissent, Judge Amul Thapar, a Trump appointee, would have read the Appointments Clause to allow an acting head to serve for a limited amount of time, and in no case more than two years. The majority, consisting of judges appointed by George W. Bush, rejected Thapar’s reading of the clause and deemed his proposed limits “wholly arbitrary.”

There is a crucial distinction between DeMarco and Blanche: The latter had been confirmed by the Senate to the position he was in when the president made him head of the agency. DeMarco, by contrast, had been chosen by the FHFA director to be one of the agency’s three deputy directors. (In 2018, some argued the Appointments Clause prevented Whitaker from serving as acting attorney general because he had not been in a Senate-confirmed position; the few courts that addressed the question during his three-month tenure concluded otherwise.)

This distinction may prove significant. In a pair of decisions a century apart, the Supreme Court has held that Congress may assign additional duties to a Senate-confirmed officer as long as those duties are “germane” to the original office. In Shoemaker v. United States (1893), the Court considered a challenge to the composition of a commission charged with supervising the creation of Rock Creek Park in the District of Columbia. The Court rejected the contention that the commission was invalid because, in creating the commission, Congress had named two of its five members—the chief of engineers of the U.S. Army and the engineer commissioner of the District of Columbia—rather than requiring that they, like the other members, be appointed by the president and confirmed by the Senate. Because the two had already been confirmed to their preexisting positions, the Court held that further confirmation was not needed just because “additional duties, germane to the offices already held by them, were devolved upon them by the act.”

In Weiss v. United States (1994), the Court upheld a statute that allowed judge advocate generals to select commissioned officers who were lawyers (all of whom had previously been confirmed by the Senate) to serve as military judges. The Court held that a germaneness inquiry was not necessary where the statute authorized unlimited military judges who could be chosen from at least hundreds of qualified commissioned officers. But the Court conducted such an inquiry anyway and concluded that the new position was germane.

To be sure, Shoemaker and Weiss were not about acting officers, although vacancy law scholars have discussed the applicability of those opinions in this context. But those cases stand for the logical proposition that Congress is on notice, when confirming a deputy attorney general, that that person might ascend to be acting attorney general in case of a vacancy. (Because the deputy attorney general, like the attorney general, oversees the entire Justice Department, the additional duties are clearly germane to the original position.) And because § 508 on its face allows such a person to become acting attorney general without a time limit, Congress may fairly be deemed to have blessed that possibility, without any Appointments Clause issue arising. Thus, even if the Supreme Court might be sympathetic to Thapar’s analysis with regard to an officer (like DeMarco) who had not been confirmed by the Senate, it seems unlikely that it would ever hold that Blanche had served as acting attorney general for too long—especially given that, as the Sixth Circuit noted, any time limit drawn would be arbitrary.

Why Are We Here?

If it doesn’t matter, then why did Trump bother formally nominating Blanche at all? It’s not like Trump has an issue with the temporary title. “I like acting,” he said about his Cabinet in 2019. “It gives me more flexibility.” A few possibilities come to mind. First, the administration may believe—rightly or wrongly—that it will be easier for Blanche to exert his influence within the department and across the executive branch if he has the full blessing of the president and the imprimatur of the Senate, and may further believe that he is in fact likely to be confirmed.

Second, Blanche may want the glory of being a bona fide, non-acting attorney general—not to mention a $25,000 salary boost—forever memorialized with a portrait outside the Office of the Attorney General. (It appears that Julie Su has no portrait.) While gratitude is rarely associated with this president, Trump may have been more willing than usual to accede to Blanche’s wishes given that, before entering government, Blanche quarterbacked the legal team that kept Trump out of prison while facing indictments in four separate cases.

Third, there is always the possibility that an Appointments Clause challenge will come out the other way. There is little precedent in this area, and five justices could surprise by not subscribing to the analysis sketched out above.

Other Possibilities

Of course, just because Trump could keep Blanche as a “forever nominee” doesn’t necessarily mean he would. Failing to get Blanche through the Senate would be a much more high-profile snub for Trump than Su was for Biden, and the Republican defectors who would be responsible for it might threaten to oppose Trump, or the Justice Department’s wish list, in other contexts if Blanche remained as acting attorney general once it became evident that he lacked the votes for confirmation.

What would happen if Trump then decided to replace Blanche as the acting attorney general? As noted above, the generous FVRA time limits would not have expired. Trump could then choose from the vast array of people who are eligible under the FVRA. He could turn to MAGA Justice Department favorites Harmeet Dhillon or Jeanine Pirro. Or he might pick an outsider—perhaps even his henchman Bill Pulte, who now serves as both FHFA director and as acting director of national intelligence despite his manifest lack of qualifications for the latter job. If he’s nostalgic for his first term, he could even choose Whitaker again! Whoever Trump picked would then become Blanche’s boss, assuming that Blanche kept his day job as deputy attorney general.

Picking Pulte or Whitaker could give rise to an Appointments Clause issue, however. It is hard to see how the duties of acting attorney general could be considered germane to Pulte’s job as FHFA director or Whitaker’s current post as U.S. Ambassador to NATO. (A Whitaker return engagement would at least avoid his first-term Appointments Clause issue, because now, unlike then, he is in a Senate-confirmed position.) Trump, however, might choose to roll the dice.

Keep in mind that whether Blanche continues to serve as acting attorney general is a separate question from whether he remains the nominee. If Blanche’s nomination stalls, Trump could select a different nominee while keeping Blanche in charge of the department until that person is confirmed. Conversely—and perversely—Trump could temporarily replace Blanche with a particularly unpalatable acting attorney general (such as Pulte!) as a goad to the Senate to confirm Blanche.

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“She’s doing a great job so I’m not in a hurry to get her confirmed at this point,” said Sen. Tammy Duckworth (D-Ill.) in July 2023, when it was clear Su could not win a Senate vote. Shorn of context, that line sounds absurd. But it makes perfect sense where the laws allow nominees to perform their jobs without regard to the will of the Senate. If Blanche becomes the second Cabinet “forever nominee” in as many administrations, senators just might be tempted to reexamine those laws.