Water Dog wrote:Well, it seems there is disagreement then, isn't there. Ohs well, what's new under the sun? And, being asked to resign isn't the same as being fired. If that is a technical difference that actually matters in this case, it would seem the technicality works against you because "asked to" or not, Sessions quit, technically.
When you're asked to submit a resignation, you're being fired and Sessions said that is precisely what happened.
Resignation vs. terminationThere’s a final reason the FVRA might not apply in this situation. The law permits the president to temporarily replace an executive branch officer with a long-serving official in the agency or an individual who has already been confirmed by the Senate for another position. But this rule only kicks in when the officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office.”
Law professor Steve Vladeck has made a compelling case that the FVRA is not triggered when an official is fired. After all, the plain language of the statute describes three specific scenarios—death, resignation, or inability to perform one’s duties. It conspicuously omits termination. There is thus a plausible argument that a president cannot invoke the FVRA to fill a vacancy after firing an officeholder.
The application of this theory here is tricky. It’s obvious that, practically speaking, Trump fired Sessions. His resignation letter begins: “
At your request, I am submitting my resignation.”
In the law there’s a principle called “constructive discharge,” which applies when an employee technically quit, but felt she had no choice but to do so. Under the Civil Rights Act, for instance, an employee may sue for constructive discharge if she quit because she faced a hostile work environment due to her sex. The paperwork might say she resigned, but she can still sue for unlawful termination.
Former prosecutor Renato Mariotti and Harvard Law professor Larry Tribe have both raised the possibility that Sessions faced constructive discharge. And
it is abundantly clear that he did not wish to step down. The language of his letter alone—“at your request”—indicates as much. Moreover, administration officials told CNN that Sessions asked to stay through Friday, but was denied. A court could conclude from these facts that Sessions’ “resignation” was not the kind of voluntary departure envisioned by the FVRA, but rather a constructive discharge. As a result, the FVRA would not apply, leaving Section 508 to fill the void—and once again, Rosenstein would step into Sessions’ role.
It is not unusual for litigants to challenge the authority of a federal agency or official to punish them. In June, the Supreme Court ruled that an administrative law judge was not properly appointed to the Securities and Exchange Commission; four years ago, it held that a member of the National Labor Relations Board was unlawfully appointed. As Thomas wrote in 2017,
the judiciary cannot ignore the law’s “check on executive power for the sake of administrative convenience or efficiency.” If Whitaker can’t legally serve as the chief law enforcement officer of the United States government, it’s the duty of the courts to toss him out.