Can Trump Appoint Whitaker to Temporarily Replace Sessions Without Senate Approval?

Various Democratic Congressmen (e.g., Rep. Schiff on today's Meet the Press) and several news organizations (See below link) are arguing that it is unconstitutional for Trump to appoint Whitaker to temporarily fill the Attorney General role without the advice and consent of the Senate.

After doing a google search, I found the following Congressional Research Service Report of 2017 (, which seems to indicate that, under the Vacancies Act, such approval is not required.
[See below excerpt from the CRS Report--Method 3]:

"..Designations Under the Vacancies Act:
When an executive branch advice and consent position covered by the Vacancies Act becomes vacant, it may be filled temporarily in one of three ways under the act: (1) the first assistant to such a position may automatically assume the functions and duties of the office; (2) the President may direct an officer who is occupying a different advice and consent position to perform these tasks; or (3) the President may select an officer or employee who is occupying a position, in the same agency, for which the rate of pay is equal to or greater than the minimum rate of pay at the GS-15 level, and who has been with the agency for at least 90 of the preceding 365 days...."

N.Y. Times on Whitaker Appointment


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