The State of Maryland filed a motion for a preliminary injunction in federal court Tuesday asking that Deputy Attorney General Rod Rosenstein replace Matthew Whitaker as acting attorney general, arguing Whitaker's appointment is unconstitutional.
NYT:
Maryland is asking a judge — Ellen L. Hollander of the Federal District Court for the District of Maryland, a 2010 Obama appointee — to rule on who is the real acting attorney general as part of a lawsuit in which it sued [former Attorney General Jeff] Sessions in his official capacity. Because Mr. Sessions is no longer the attorney general, the judge must substitute his successor as a defendant in the litigation, so she has to decide who that successor legally is.
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Maryland filed the underlying litigation in response to a separate lawsuit by Texas and several other Republican-controlled states challenging the Affordable Care Act. They argue that the law’s so-called individual mandate to obtain health insurance, which the Supreme Court upheld in 2012, became unconstitutional after Congress last year reduced its tax penalty to nothing.
In June, the Justice Department under Mr. Sessions agreed with Texas and said key parts of the law — including the provision that protects people with pre-existing conditions — must be struck down. In response, Maryland filed its own lawsuit in September. It asked Judge Hollander to declare that the contested parts of the insurance law are constitutional and to direct the government, and Mr. Sessions in particular, to enforce it as written.
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Neither the judge in the Texas lawsuit nor Judge Hollander has ruled on the Affordable Care Act issues. But because the government’s enforcement of the act is set to change on Jan. 1, Maryland said it needed an injunction now to prevent Mr. Whitaker from illegitimately controlling the Justice Department’s policy and legal positions.
Among other things, the lawsuit cited Mr. Whitaker’s declaration, in a 2014 Q. and A., that the 2012 Supreme Court ruling upholding the Affordable Care Act was one of the worst rulings in the court’s history.
If the judge does as Maryland asks, ruling that Whitaker cannot serve as attorney general, it would be a blow to President Donald Trump, who bypassed Rosenstein in favor of someone who has repeatedly criticized Robert Mueller's investigation of Russian election meddling.
The Justice Department would immediately appeal any such ruling, and the case could be on a fast track to the Supreme Court.
State of Maryland asks judge to declare Rosenstein acting attorney general (NBC News)
Whitaker’s Appointment as Acting Attorney General Faces Court Challenge (New York Times)