The Maryland attorney general's office told a federal judge Wednesday that the Trump administration “displaced” the Senate-approved official — Rod Rosenstein — who was properly in line to become acting U.S. attorney general and illegally named Matthew Whitaker instead.
“He’s not somebody who would be confirmed by the Senate,” state Attorney General Brian Frosh said of Whitaker following a three-hour hearing in U.S. District Court. “He has extreme views.”
An attorney for Frosh argued during the hearing for an order blocking Whitaker from the post on grounds that his appointment violates the Constitution’s appointments clause. The argument came as Maryland sought to preserve its suit to sustain the Affordable Care Act — the health care law recently found unconstitutional by a Texas judge.
President Donald Trump’s administration has argued that Maryland lacks standing to sue and that the case "is a transparent attempt to vindicate Maryland’s policy interests."
Frosh’s lawyers made two requests during the hearing: a declaration that the Affordable Care Act — once known as Obamacare — is constitutional and an order that could have the effect of replacing Whitaker with Rosenstein, the deputy attorney general — and former Maryland U.S. attorney — who was confirmed by the Senate.
The two requests are connected, Maryland attorneys argued, because Whitaker — if he was improperly appointed — should not be making significant decisions about whether to enforce the Affordable Care Act.
Whitaker is “an unconstitutional decision maker,” Thomas Goldstein told U.S. District Judge Ellen Hollander. Goldstein is outside counsel hired by the state for the case.
The appointment of Whitaker, former chief of staff to Jeff Sessions, who was ousted by Trump last month, is being challenged in multiple court cases.
Asked by Hollander whether Whitaker would be involved in decisions about the status of the Affordable Care Act, Justice Department lawyer Hashim Mooppan declined to say.
“We are not going to disclose Mr. Whitaker’s participation in the case,” Mooppan said. “That sort of internal workings of the department — we don’t think it’s appropriate to disclose.”
Hollander took under advisement the Justice Department’s request to dismiss Frosh’s suit and and did not say when she would rule. Frosh appeared at the hearing but left the argument to the outside counsel — Goldstein and attorney Kevin Russell, partners in a Bethesda-based firm known for handling appeals to the Supreme Court.
Mooppan told the judge that Maryland’s claims are based on speculation — that there is no evidence that the administration is poised to stop enforcing the Affordable Care Act.
“They don’t have any allegation for it and they certainly don’t have any factual support,” Mooppan said. “It is completely speculative that the Texas court will order us to cease to enforce.”
Democrats have accused the administration of trying to sabotage the health-care law that was partially undone when Congress repealed a mandate in 2017 that required most Americans to buy insurance or risk a tax penalty.
Last Friday, a federal judge in Texas ruled the law is unconstitutional. U.S. District Judge Reed O'Connor held that the law could not legally stand once Congress eliminated the tax penalty for people without health insurance.
The White House said the law remains in effect while the case is appealed. But a number of states have asked O'Connor for clarity about the immediate effect of his ruling, and have requested a stay.
There is no certain path for what would happen if the Maryland court disagreed with the Texas court and upheld the law. The matter could then be resolved by the parties or during appeals.
In any case, Hollander is not bound by the decision of the Texas judge.
“She is free to do what she wants in light of the law and the facts before her,” said University of Richmond law professor Carl Tobias in an interview.
In a brief filed Tuesday, Frosh said the Texas case made it more imperative to remove Whitaker before he can become involved in the Trump administration's decisions about the health care law.
"Although Defendants have previously tried to cast doubt on the extent of Mr. Whitaker’s involvement in matters relevant to this litigation, they cannot plausibly deny that he will play a material role in the formulation of the Government’s response to the Texas order, with inevitable effects on this case," Frosh wrote.
Trump recently named former attorney general William P. Barr to again head the Justice Department. His confirmation hearing won't occur until early January.
Frosh said in an interview Wednesday that Whitaker lacks the proper experience for the job and that Whitaker has criticized Robert Mueller’s investigation into possible collusion between Russians and Trump’s associates during the 2016 election campaign.
But Mooppan said of Whitaker: “This is a totally sensible and reasonable choice. That person is intimately familiar with the operations of the department.”