The Justice Department's Office of Legal Counsel has backed this move by Trump and the Justice Department points out 160 instances of a person performing the duties of a Senate-confirmed position in American history.
The senators who filed the complaint in the U.S. District Court for the District of Columbia are Connecticut Sen. Richard Blumenthal, Rhode Island Sen. Sheldon Whitehouse and Hawaii Sen. Mazie Hirono. All three released fiery statements Monday.
“Installing Matthew Whitaker so flagrantly defies constitutional law that any viewer of School House Rock would recognize it. Americans prize a system of checks and balances, which President Trump’s dictatorial appointment betrays,” Blumenthal said.
The senators argue that Whitaker’s appointment is in violation of the Constitution’s appointments clause. They ask the federal court to declare Whitaker’s appointment unconstitutional and block him from carrying out duties.
But the Justice Department maintains that the appointment is legal. DOJ spokeswoman Kerri Kupec said Monday it is “lawful” and comports with the with the Federal Vacancies Reform Act, the appointments clause of the U.S. Constitution, Supreme Court precedent, past Department of Justice opinions and past actions of Republican and Democratic presidents.