History doesn’t repeat, but it rhymes. Eighteen years ago, without the Senate’s consent, Bill Clinton illegally appointed Bill Lann Lee to head the Justice Department’s Civil Rights Division. The uproar that resulted led Congress to pass the Federal Vacancies Reform Act (FVRA), a major reform of our vacancies law, limiting the time someone can be an “acting” high official without Senate confirmation. Now under the Obama administration, that same law may be the undoing of another illegally appointed civil-rights head. Bill Lee, thy rhyme is Vanita Gupta.
The current saga in the Civil Rights Division began nearly three and a half years ago, when its leader, Tom Perez — the embodiment of the Peter Principle, whereby managers rise to their level of incompetence — was promoted to the position of secretary of labor. President Obama nominated Debo Adegbile, formerly an attorney with the NAACP (and this week appointed to the U.S. Civil Rights Commission), to replace Perez. But Adegbile’s nomination immediately ran into severe Senate headwinds. During his time at the NAACP, he contributed to a brief on behalf of the convicted cop-killer and cause célèbre Mumia Abu-Jamal. That connection prompted an outpouring of objections, stalling his nomination.
This time limit was put into the FVRA to incentivize the president and Senate to reach consensus on permanent officials to fill a given vacancy. But here, President Obama decided that trying to find someone acceptable to the Senate wasn’t worth the hassle — and so he simply hasn’t sent up a new nominee. The seven-month clock, meanwhile, ran out in April 2015. Vanita Gupta, the division’s deputy head, has continued serving as acting chief, although, according to the law, her time was up.
The FVRA is clear: Once an acting officer’s seven months have expired, “the office shall remain vacant; and . . . only the head of such Executive agency may perform any function or duty of such office.” In plain English, this means that Attorney General Loretta Lynch herself, not Vanita Gupta, became and remains the only person authorized to lead the Civil Rights Division.
Vanita Gupta has stayed on the job as if she were still the lawful boss, changing nothing except the title she uses to sign her orders.
How has Gupta justified her continued exercise of this power? The strongest clue is in a letter she sent to North Carolina governor Pat McCrory in May, informing him of an impending Title VII suit: The attorney general “may apply to the appropriate court for an order that will ensure compliance with Title VII,” she wrotea. “This responsibility has been delegated to the Principal Deputy Assistant Attorney General of the Civil Rights Division” — that is, to Gupta herself.
The problem with this argument is that the FVRA was written specifically to prevent such a work-around. When there’s no valid acting officer, the department head — here, the attorney general — may not delegate that officer’s duties to anyone else unless a statute “expressly authorizes” her “to designate an officer” to perform those duties.
Does such an express statutory authorization exist here? Gupta might point to 28 U.S.C. § 510, which declares that “the Attorney General may from time to time . . . authoriz[e] the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.”
This is where the strange rhyming history comes full circle. It was precisely this statute that the Clinton administration invoked to install Bill Lann Lee without Senate confirmation. In response to that ploy, the FVRA includes the following language: “Any statutory provision providing general authority to the head of an Executive agency . . . to delegate duties . . . [to] officers or employees of such Executive agency, is not a statutory provision” that qualifies as express authorization. And just in case this wasn’t clear enough, the FVRA’s sponsors referred specifically to 28 U.S.C. § 510 as one statute that “shall not be construed as providing an alternative means of filling vacancies.”
The FVRA declares that all actions taken by unauthorized officers are void, which means that every enforcement proceeding brought by Gupta in the last 20 months is now susceptible to legal challenge. As it happens, the Supreme Court is currently considering National Labor Relations Board v. SW General, Inc., a case challenging the legality of an acting officer. (There the issue is over who may serve in that temporary capacity, the other side of the official-vacancy coin.) Given the shenanigans in the Civil Rights Division, it may not be long before people aggrieved by Gupta’s activism also find their way to court.
— Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute, where Thomas Berry is a legal associate. They filed a brief in the referenced FVRA case, NLRB v. SW General.