Maryland's Attorney General on Tuesday filed papers asking a federal judge to replace Matthew Whitaker as acting US attorney general with Deputy Attorney General Rod Rosenstein.
Brian Frosh argues Whitaker was not properly appointed and his appointment violates the Attorney General Succession Act in addition to the Appointments Clause of the Constitution.
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His court challenge seeks a preliminary injunction that would stop the Justice Department from proceeding in defending a lawsuit involving the Affordable Care Act unless Rosenstein replaces Whitaker.
Maryland, along with more than a dozen other states, are seeking rulings that the Affordable Care Act remains enforceable despite the Trump administration's efforts to dismantle it.
Since Maryland's lawsuit named former Attorney General Jeff Sessions as a defendant, the state now says the judge overseeing the lawsuit should declare that the proper defendant as attorney general is Rosenstein, not Whitaker.
"It is troubling, to say the least, that the President is attempting to fill a 'vacancy' he created himself with a 'temporary' appointment that might last for many months or years," the motion said.
While the Trump administration has said Whitaker's appointment is valid under the Federal Vacancies Reform Act, Maryland urges the judge to rule that the Attorney General Succession Act should actually apply. The AG Succession Act provides that in the case of the vacancy of the office of Attorney General, the Deputy Attorney General would exercise all duties of the office. In this case, that would be Rosenstein.
The Justice Department is expected to release an Office of Legal Counsel opinion Tuesday detailing their legal theory behind the legality of Whitaker's appointment.