The state of Maryland filed a motion for preliminary injunction on Tuesday seeking to restrain and enjoin former Chief of Staff to the Attorney General Matthew Whitaker from “appearing in the official capacity of the Acting Attorney General.”

Instead, the motion seeks the appointment of Deputy Attorney General Rod Rosenstein as the acting Attorney General, replacing former Attorney General Jeff Sessions. The motion applies to an ongoing lawsuit regarding 26 USC § 5000A(a), which covers minimum required health insurance coverage.

The motion argues that Rosenstein is the acting Attorney General due to 28 USC § 508(a). The statute gives the Deputy Attorney the power to act as the Attorney General when there is no Attorney General.

The motion also argues that the Department is incorrect in stating that the Vacancies Reform Act can be used to appoint a new acting Attorney General. It is argued that in order for the Vacancies Reform Act to allow the appointment of an acting head, congress would have expressly stated so, as it has done regarding the acting heads of other agencies. However, the Attorney General Succession Act does not make this express statement.

The motion also states that the Constitution requires that the Acting Attorney General be a Senate-confirmed official. Article II of the Constitution states that principle officers must be appointed by the president “with the Advice and Consent of the Senate.” Whitaker has not been confirmed by Congress, but Rosenstein was approved by the Senate in his role as Deputy Attorney General.

Former Attorney General Jeff Sessions resigned earlier in November, and Whitaker was announced as the new acting Attorney General by President Donald Trump through Twitter. Sessions had been confirmed by the Senate in February 2017.