Why Can't Biden Appoint Merrick Garland as Acting Attorney General?

Introduction

As with every other cabinet-level appointment made by Biden and every other U.S. President, the Senate must first hold hearings and then vote on the nominee's confirmation for the role of Attorney General (AG). The hearings for nominee Merrick Garland just began on February 22, 2021. However, the question arises as to why Merrick Garland cannot immediately be named as the acting AG. This issue is rooted in the legal framework surrounding the judicial and executive branches of the U.S. government.

Laws Governing the Appointment of Acting Officials

Two key laws govern which individuals are eligible to serve as acting officials in the Department of Justice (DOJ). These laws are part of a broader set of regulations designed to maintain clear chains of command and ensure that those appointed to acting positions have the necessary backgrounds and qualifications.

5 U.S. Code § 3345 - Acting Officer

This law establishes the criteria for individuals who may serve as acting officers in various government roles. The acting officer must be an individual who is either already serving as the head of an agency or the presumptive acting officer for that role, based on a chain of command established by the law.

28 U.S. Code § 508 - Vacancies

This statute further clarifies the process for filling vacancies in positions within the DOJ. It provides that the presumptive acting officer will automatically become the acting officer unless the President nominates a new eligible individual. The term 'eligible' under this statute requires that the individual has been working in a role that required Senate confirmation within the last four years.

The main requirement under both laws relates to prior Senate confirmation. Specifically, an individual who is not yet confirmed by the Senate but is deemed eligible to serve as an acting officer must have recently held a position that required Senate confirmation. However, this is only true if the position is in the executive branch, not the judicial branch.

Garland's Current Position

Philippe Garland, currently a judge on the U.S. Court of Appeals for the District of Columbia Circuit, is in a position that required Senate confirmation but it is a judicial branch position. This context is crucial in understanding why he cannot be appointed as acting AG. His judicial position does not meet the criteria outlined in the relevant laws mentioned above.

These laws, while intricate and technically demanding to fully understand, aim to ensure that acting officials are qualified and capable of performing the duties of their respective positions. The complexities and restrictions in these laws can sometimes lead to unintended delays or complications, as seen with Merrick Garland's appointment.

Recent Developments and Political Backlash

Garland would already be the actual AG except for a political roadblock. U.S. Senator Lindsey Graham, representing South Carolina, has pulled a tactic similar to what Senate Majority Leader Mitch McConnell used in the Obama administration to obstruct Garland's confirmation. This move, driven by political considerations, has caused significant delays and complications in the process.

The situation highlights the delicate balance between the legislative and executive branches and the impact of political negotiations on judicial and cabinet-level appointments.

For those interested in delving deeper into the legal details, the relevant statutes should be reviewed. However, given the complexity, it is often more practical to rely on legal experts and up-to-date analyses provided by reputable sources.