{"id":286,"date":"2026-07-09T17:42:19","date_gmt":"2026-07-09T17:42:19","guid":{"rendered":"https:\/\/nationalconsumerreportss.com\/?p=286"},"modified":"2026-07-09T17:42:19","modified_gmt":"2026-07-09T17:42:19","slug":"the-unbearable-lightness-of-a-todd-blanche-confirmation-fight","status":"publish","type":"post","link":"https:\/\/nationalconsumerreportss.com\/?p=286","title":{"rendered":"The Unbearable Lightness of a Todd Blanche Confirmation Fight"},"content":{"rendered":"
\n

President Trump\u00a0has nominated Acting Attorney General Todd Blanche to be, well, the non-acting attorney general. Senate Democrats are\u00a0loaded for bear as they await his July 15 confirmation hearing. Key Republicans\u00a0are undecided. The two likeliest outcomes are Blanche gets confirmed and serves as attorney general for as long as Trump wants, or he doesn\u2019t get confirmed and serves as attorney general for as long as Trump wants.<\/p>\n

Read more Lawfare Live: The Trials of the Trump Administration, July 2<\/a><\/p>\n

Sound odd? It\u2019s due to the Attorney General Succession Act, codified at 28 U.S.C. \u00a7 508, which provides in pertinent part that \u201c[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.\u201d<\/p>\n

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.<\/p>\n

But how long<\/em> can Blanche serve under \u00a7 508? The text of the act\u2014unlike the text of the FVRA\u2014sets 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.<\/p>\n

Joe Biden\u2019s Forever Nominee<\/strong><\/p>\n

In March 2023, Labor Secretary\u00a0Marty Walsh resigned (to become, of all things, the head of the National Hockey League players\u2019 union). Deputy Labor Secretary Julie Su became acting secretary via a statute similar to \u00a7 508,\u00a029 U.S.C. \u00a7 552, which provides that \u201c[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.\u201d President Biden\u00a0promptly 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,\u00a0doomed her nomination. Instead of nominating someone else\u2014or even insisting that Su get a final vote on the Senate floor\u2014the\u00a0White House decided to rely on \u00a7 552 and keep her in place. Axios dubbed her \u201cBiden\u2019s forever nominee\u201d; the Wall Street Journal summarized the president\u2019s position as \u201cSo Su Me.\u201d<\/p>\n

Republicans were not happy. In July 2023, Rep. Virginia Foxx (R-N.C.), then chair of the House Committee on Education and the Workforce,\u00a0wrote the head of the Government Accountability Office (GAO), which\u00a0the FVRA itself tasked with monitoring compliance with the law, to ask how the two statutes intersected. GAO that Su \u201cmay continue to serve in that position until a successor is appointed.\u201d She remained until President Biden\u2019s last day.<\/p>\n

The Nuts and Bolts of Vacancy Laws<\/strong><\/p>\n

Let\u2019s dig into how these laws work, starting with the FVRA, which is codified at\u00a05 U.S.C. \u00a7\u00a7 3345-3349d.\u00a0Section 3345 prescribes who may serve;\u00a0\u00a7 3346 imposes time limits on such service. But\u00a0\u00a7 3347 provides that \u201cSections 3345 and 3346 are the exclusive means for temporarily authorizing an acting official to perform the functions and duties\u201d of a presidentially appointed, Senate-confirmed office unless<\/em> \u201ca statutory provision expressly … designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity.\u201d<\/p>\n

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\u00a0Senate report that accompanied a near-final version of the FVRA included \u00a7 552 in a nonexhaustive list of 40 statutes that the drafters intended, per \u00a7 3347, as exceptions to the FVRA\u2019s exclusivity. And if it\u2019s encompassed by \u00a7 3347 then, by the terms of that section, \u00a7 3346\u2014which sets forth time limits\u2014would seem not to apply.<\/p>\n

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 \u00a7 3347. This has come up in\u00a0litigation involving Su, in\u00a0three cases regarding the appointment of Chad Wolf to be acting secretary of homeland security (interpreting\u00a06 U.S.C. \u00a7 113(g)(2)), and\u00a0in litigation over an appointment to head the Federal Housing Finance Agency (FHFA) (interpreting\u00a012 U.S.C. \u00a7 4512(f)). (In addition, GAO has\u00a0reached the same conclusion with regard to the commissioner of the Social Security Administration, interpreting\u00a042 U.S.C. \u00a7 902(b)(4).)<\/p>\n

There is no reason to suspect that the outcome would be different in any challenge to Blanche\u2019s tenure. The language of \u00a7 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\u00a0in a 1975 case that an acting attorney general appointed pursuant to \u00a7 508 was not subject to the then-30-day time limit of an older vacancies act since superseded by the FVRA.<\/p>\n

(Some have argued that \u00a7 508 is the only<\/em> way to designate an acting attorney general. This came up in Trump\u2019s first term; after axing his first attorney general, Jeff Sessions,\u00a0Trump made Sessions\u2019s chief of staff, Matthew Whitaker, the acting attorney general. The deputy attorney general at the time, Rod Rosenstein, had won Trump\u2019s ire by appointing Robert Mueller as a special counsel, an act\u00a0Trump said warranted Rosenstein\u2019s incarceration. The few courts that reviewed the use of the FVRA to elevate Whitaker, who served for only three months,.)<\/p>\n

But even if the FVRA did apply, its time limits are quite generous. The clock starts ticking when the office becomes vacant\u2014and then ticks\u00a0very 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<\/em> nomination is pending, and for a final 210 days if the second nomination is also returned to the president.<\/p>\n

Thus, if \u00a7 508 didn\u2019t 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\u2014like Su\u2014he is renominated by the president and then his second nomination also stalls. For the same reason, the 2023-2024 debate about whether the FVRA\u2019s 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:\u00a0A 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.)<\/p>\n

The Appointments Clause<\/strong><\/p>\n

An attempt to challenge Blanche\u2019s indefinite tenure might rely on the Appointments Clause,\u00a0which requires that \u201cprincipal officers\u201d 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\u2014from Pam Bondi\u2019s departure to the end of Trump\u2019s term\u2014violates the Constitution. In 2022, 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 \u00a7 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\u2019s reading of the clause and deemed his proposed limits \u201cwholly arbitrary.\u201d<\/p>\n

Read more The Kill Switch and the Long Arm<\/a><\/p>\n

There is a crucial distinction between DeMarco and Blanche: The latter had been\u00a0confirmed by the Senate to the position he was in when the president made him head of the agency. DeMarco, by contrast,\u00a0had been chosen by the FHFA director to be one of the agency\u2019s three deputy directors. (In 2018,\u00a0some 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.)<\/p>\n

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 \u201cgermane\u201d to the original office. In (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\u2014the chief of engineers of the U.S. Army and the engineer commissioner of the District of Columbia\u2014rather 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 \u201cadditional duties, germane to the offices already held by them, were devolved upon them by the act.\u201d<\/p>\n

In (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.<\/p>\n

To be sure, Shoemaker <\/em>and Weiss<\/em> were not about acting officers, although vacancy law scholars have of those opinions. 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 \u00a7 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\u2019s 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\u2014especially given that, as the Sixth Circuit noted, any time limit drawn would be arbitrary.<\/p>\n

Why Are We Here?<\/strong><\/p>\n

If it doesn\u2019t matter, then why did Trump bother formally nominating Blanche at all? It\u2019s not like Trump has an issue with the temporary title. \u201cI like acting,\u201d\u00a0he said about his Cabinet in 2019. \u201cIt gives me more flexibility.\u201d A few possibilities come to mind. First, the administration may believe\u2014rightly or wrongly\u2014that 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.<\/p>\n

Second, Blanche may want the glory of being a bona fide<\/em>, non-acting attorney general\u2014not to mention a\u00a0$25,000 salary boost\u2014forever memorialized with\u00a0a portrait outside the Office of the Attorney General. (It appears that Julie Su\u00a0has no portrait.) While gratitude is rarely associated with this president, Trump may have been more willing than usual to accede to Blanche\u2019s wishes given that, before entering government, Blanche quarterbacked the legal team that kept Trump out of prison while facing indictments in four separate cases.<\/p>\n

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.<\/p>\n

Other Possibilities<\/strong><\/p>\n

Of course, just because Trump could<\/em> keep Blanche as a \u201cforever nominee\u201d doesn\u2019t necessarily mean he would<\/em>. 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\u2019s wish list, in other contexts if Blanche remained as acting attorney general once it became evident that he lacked the votes for confirmation.<\/p>\n

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\u00a0MAGA Justice Department favorites Harmeet Dhillon or Jeanine Pirro. Or he might pick an outsider\u2014perhaps 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\u2019s nostalgic for his first term, he could even choose Whitaker again! Whoever Trump picked would then become Blanche\u2019s boss, assuming that Blanche kept his day job as deputy attorney general.<\/p>\n

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\u2019s job as FHFA director or Whitaker\u2019s 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.<\/p>\n

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\u2019s nomination stalls, Trump could select a different nominee while keeping Blanche in charge of the department until that person is confirmed. Conversely\u2014and perversely\u2014Trump could temporarily replace Blanche with a particularly unpalatable acting attorney general (such as Pulte!) as a goad to the Senate to confirm Blanche.<\/p>\n

*\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0 *<\/strong><\/p>\n

\u201cShe\u2019s doing a great job so I\u2019m not in a hurry to get her confirmed at this point,\u201d 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 \u201cforever nominee\u201d in as many administrations, senators just might be tempted to reexamine those laws.<\/p>\n

Read more Lawfare Daily: Nuclear Weapons in the Age of AI, with Joshua Keating<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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