Commentary

Veteran law professor: Trump’s new Attorney General is a frightening extremist

Be sure to check out the new essay published yesterday on the American Constitution Society website by veteran law professor Erwin Chemerinsky. The essay is entitled “An Extremist Attorney General,” and in it Chemerinsky offers a remarkably damning portrait of Matthew Whitaker and his bizarre beliefs. Here are some excerpts:

Matthew Whitaker – Image: American Constitution Society

I didn’t think that President Trump could find someone more conservative to be Attorney General than Jeff Sessions, but I was wrong. Acting Attorney General Matthew Whitaker’s beliefs are at the far-right fringes of the Republican party. Thankfully, there is a strong argument made by conservatives such George Conway, Alberto Gonzalez, and John Yoo that the appointment of Whitaker is unconstitutional.

Whitaker’s views on constitutional law are stunning. While running for the Senate in Iowa four years ago (he finished fourth), he was asked what Supreme Court cases were wrongly decided. “There are so many,” he replied. “I would start with the idea of Marbury v. Madison. That’s probably a good place to start and the way it’s looked at the Supreme Court as the final arbiter of constitutional issues. We’ll move forward from there. All New Deal cases that were expansive of the federal government. Those would be bad. Then all the way up to the Affordable Care Act and the individual mandate.”

Also, while running for the Senate, Whitaker said that states did not have to follow federal law and could nullify it if they wished….

In just a few sentences, Whitaker rejected foundational constitutional principles that have been followed since the earliest days of American history. Whitaker rejects Marbury v. Madison and the power of courts to review the constitutionality of statutes and executive actions.

He rejects “all” of the New Deal cases. These included decisions upholding Social Security, the federal minimum wage, and federal agencies such as the National Labor Relations Board. These are the cases that provided the basis for federal civil rights laws, such as the Civil Rights Act of 1964, which prohibits race discrimination by hotels and restaurants and forbids employment discrimination based on race, sex, or religion.

But Whitaker goes even further and says that states can nullify federal law because states created the federal government. The Supreme Court expressly rejected this argument in McCulloch v. Maryland in 1819, when Chief Justice John Marshall explained that it was the people, not the states, that created the national government and held that states cannot nullify federal actions….

If this is not enough, Whitaker has taken the position that only Christians should be federal judges. While running for the Senate in Iowa, Whitaker was asked about his criteria for evaluating federal judges. He said, “I’d like to see things like their worldview, what informs them. Are they people of faith? Do they have a biblical view of justice? — which I think is very important.” The moderator asked, “Levitical or New Testament?” “New Testament,” Whitaker replied.

Chemerinsky closes by questioning whether it’s even constitutional to have an attorney general who has never been confirmed by the Senate, as has been the tradition with past interim replacements. He notes that even many on the far right find such a proposition doubtful. Here’s his remarkable conclusion:

Jeff Sessions did many terrible things as Attorney General. He initiated and defended the policy of separating parents and children at the border. He mandated charging every crime to the maximum. He withheld federal law enforcement funds from cities that did not cooperate with federal immigration officials, which several federal courts declared unconstitutional. But he did the right thing and recused himself from the Mueller investigation and never interfered.

For that he drew President Trump’s ire and insults and it led to his firing. In Matthew Whitaker, President Trump found someone more extreme than Jeff Sessions. Whitaker is one the most frightening people to occupy the role of Attorney General in American history.

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