Maryland to argue Rosenstein, not Whitaker, should be acting attorney general

The motion, filed by Maryland Attorney General Brian Frosh, comes as part of a lawsuit over the future of Obamacare.

Maryland, along with more than a dozen other states, are seeking rulings that the Affordable Care Act remains enforceable despite the Trump administration's efforts to dismantle it.

Justice Department expected to issue legal opinion defending Whitaker appointment

Since Maryland's lawsuit named former Attorney General Jeff Sessions as a defendant, the state now says the judge overseeing the lawsuit should declare that the proper defendant as Attorney General is Rosenstein, not Whitaker.

In the draft court filings, Maryland argues that because Whitaker is not Senate confirmed, his appointment violated federal law and was beyond the appointment authority laid out in the Constitution. While the Trump administration has said Whitaker's appointment is valid under the Federal Vacancies Reform Act, Maryland urges the judge to rule that the Attorney General Succession Act should actually apply.

The AG Succession Act provides that in the case of the vacancy of the office of Attorney General, the Deputy Attorney General would exercise all duties of the office. In this case, that would be Deputy AG Rosenstein.

The Justice Department is expected to release an Office of Legal Counsel opinion Tuesday detailing their legal theory behind the legality of Whitaker's appointment.

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