Maryland asks court to replace Whitaker with Rosenstein as acting AG

Maryland Attorney General Brian Frosh asked a federal district court on Tuesday to block Matthew Whitaker from serving as acting attorney general and to name Deputy Attorney General Rod RosensteinRod Jay Rosenstein5 myths about William Barr William Barr's only 'flaw' is that he was nominated by Trump The Hill's Morning Report — Shutdown fallout — economic distress MORE in his place. 

The state’s motion came as part of an existing lawsuit that Maryland filed against the administration to protect the Affordable Care Act’s protection of people with preexisting conditions and other provisions.

In his request Tuesday, Frosh argued Whitaker’s appointment is both unconstitutional and unlawful.

“The Constitution and Congress have established vitally important processes for filling high-level vacancies in the federal government,” Frosh said in a statement.

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“Few positions are more critical than that of U.S. Attorney General, an office that wields enormous enforcement power and authority over the lives of all Americans. President TrumpDonald John TrumpSunday shows preview: Shutdown negotiations continue after White House immigration proposal Rove warns Senate GOP: Don't put only focus on base Ann Coulter blasts Trump shutdown compromise: ‘We voted for Trump and got Jeb!’ MORE’s brazen attempt to flout the law and Constitution in bypassing Deputy U.S. Attorney General Rosenstein in favor of a partisan and unqualified staffer cannot stand.” 

After former Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsOvernight Health Care: Thousands more migrant children may have been separated | Senate rejects bill to permanently ban federal funds for abortion | Women's March to lobby for 'Medicare for All' Acting AG Whitaker's wife defends him in lengthy email to journalist Watchdog: Thousands more migrant children separated from parents than previously known MORE submitted his resignation at the president’s request last week, Trump named Whitaker to fill the interim role as acting attorney general.

Maryland argues the appointment is unlawful under the Attorney General Succession Act, which vests full authority to the deputy attorney general if the Office of Attorney General becomes vacant, and unconstitutional under the appointments clause of the Constitution.

That clause requires all principal officers who report to the president to be confirmed by the Senate.

“The reasons for this regime are obvious and illustrated by the facts of this case,” the state argues. “The Attorney General exercises vast authority over, for example, criminal and national security matters. The role calls for the highest levels of integrity and personal judgment, prerequisites safeguarded by the Constitution’s command that principal officers be subject to the oversight and check provided by Senate confirmation.”

The Justice Department is expected to release an opinion Tuesday from the Office of Legal Counsel that defends Whitaker's appointment, CNN reported Tuesday morning.