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 RosensteinWhy the presumption of innocence doesn't apply to Trump McCabe sues FBI, DOJ, blames Trump for his firing Rosenstein: Trump should focus on preventing people from 'becoming violent white supremacists' 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 TrumpTrump watching 'very closely' as Portland braces for dueling protests WaPo calls Trump admin 'another threat' to endangered species Are Democrats turning Trump-like? 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 SessionsLewandowski says he's 'happy' to testify before House panel The Hill's Morning Report — Trump and the new Israel-'squad' controversy Nadler subpoenas Lewandowski, former White House official for testimony 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.