Lawyers for the State of Maryland tried to convince a federal judge on Wednesday that Matthew G. Whitaker should not have been appointed acting U.S. Attorney General by President Trump last month. They argued that the president violated the law by not selecting the second in command at the Department of Justice, Deputy Attorney General Rod Rosenstein, instead.
Accordingly, they said, the actions Whitaker has taken in his new role lack legitimacy.
A top Justice Department attorney countered the state’s argument, telling U.S. District Court Judge Ellen L. Hollander that Trump’s decision to appoint Whitaker follows established precedent. “There is clear practice in all three branches of someone serving in a temporary capacity,” Deputy Assistant Attorney General Hashim M. Mooppan said.
The three-hour hearing, at the federal courthouse in Baltimore, came as part of a legal challenge, State of Maryland vs. U.S., that seeks to push the Trump administration into enforcing the Affordable Care Act, despite what the plaintiffs called the president’s “undying hostility” toward President Obama’s signature health care law.
The suit was filed by Maryland Attorney General Brian E. Frosh (D), who has sued the president more than a dozen times. Frosh, who breezed to a second term last month, sat next to his attorneys but did not participate in the court hearing.
Afterward he said he is “cautiously optimistic” that the judge will side with the state.
“I thought it went very well,” he told reporters just outside the courtroom. “We think [Whitaker] is not legally sitting as the attorney general.”
Maryland’s suit against the federal government was filed in September, after a group of Republican state attorneys general brought suit against the ACA in Texas. The Maryland case takes on heightened importance given Friday’s ruling by North Texas Judge Reed O’Connor, who struck down the entire health care law, calling it unconstitutional.
While O’Connor’s decision is a major blow for backers of Obamacare, the ruling is not considered final, and many legal experts expect it to be overturned on appeal. The Supreme Court upheld Obamacare in a landmark 2012 ruling, with Chief Justice John Roberts siding with the majority.
Maryland was represented by outside counsel, law partners Thomas C. Goldstein and Kevin K. Russell of Bethesda.
They attacked Trump’s decision to elevate Whitaker from chief of staff at the Justice Department to attorney general after Jeff Sessions was forced to resign from that post, calling it “unprecedented,” “unconstitutional” and “illegal.” Federal laws governing high-level vacancies stipulate that Rosenstein, the former U.S. Attorney for Maryland, should have been named acting A.G. automatically, pending the nomination of a permanent successor, they said.
Rosenstein has been confirmed by the Senate for the deputy role; Whitaker has not.
In addition, the state’s attorneys said, Maryland has good reason to seek a court order requiring the federal government to enforce existing health care law.
“Maryland’s entire regulation of the health care sector is premised on the continuing enforcement of the ACA,” Russell said, adding that a wide range of costly state actions — including reinstatement of the high-risk pool for sick people who can’t get health insurance — might become necessary if the Trump administration abandons the law.
Mooppan called the state’s suit speculative and premature, saying the federal government, through the Department of Health and Human Services, will continue to enforce the ACA.
Maryland’s attorneys have “cited nothing to support the proposition that — absent an order from the Texas court — we are going to cease to enforce the ACA,” he said. “They just have no basis for that.”
Mooppan also sought to brush aside Maryland’s claim that Trump broke the law by appointing Whitaker to serve as acting attorney general.
“The chief of staff to the attorney general… is intimately familiar with the operations of the entire department,” he said. “It’s not like we picked some GS-15. They picked the chief of staff to the attorney general. This is a totally sensible and reasonable choice for who is going to run a cabinet department for the short term.”
Goldstein, in rebuttal, argued that Maryland and the nation “are being subjected to the actions and influence” of a “decision-maker” who has not been confirmed by the U.S. Senate.
“They make the Attorney General Succession Act meaningless,” he said. “That statute exists for a very specific reason, to stop the president from picking somebody, for example, who might be most inclined to shut down the investigation of the president, just to pick a hypothetical.”
Despite being asked multiple times by the judge if Whitaker has been involved in internal discussions surrounding the Maryland lawsuit, Mooppan refused.
“They have to have a plausible allegation that he is involved, and they don’t,” he replied.
In addition to questioning the legality of Whitaker’s selection to be attorney general, Frosh also accused him of being unqualified. “He was a small-time lawyer in Iowa before he was appointed out of the air as U.S. attorney. … This guy doesn’t belong there. He doesn’t belong there legally, and he doesn’t belong there because he’s unqualified.”
Frosh also defended his decision not to join with Democratic attorneys general in fighting the GOP challenge to Obamacare.
“We don’t have to run to Texas to protect Marylanders.”
Hollander promised a ruling at some point — “but I won’t tell you when.”
And in a gentle dig at the federal government’s attorney, she added: “You’re not the only one who won’t answer a question.”