DOJ’s Civil Rights Division Head Is Violating Federal Law and Her Actions May Be Void
Vanita Gupta, the acting head of the U.S. Justice Department’s Civil Rights Division, apparently has been working in violation of federal law for more than a year and a half.
That may render all of the official actions she has taken during that period—lawsuits, demand letters, hires, you name it—“void” and of no effect.
To deter presidents from trying to get around the Senate’s constitutional “advise and consent” role in executive branch appointments, Congress passed the Federal Vacancies Reform Act in 1998. A key section of the law sets restrictions and time limitations on how long someone can remain as the “acting” official in a position that must be confirmed by the Senate.
The assistant attorney general for Civil Rights is one such position, according to the “Plum Book,” the official list of all such positions in the executive branch that is published by the U.S. House of Representatives Committee on Oversight and Government Reform.
Under the Federal Vacancies Reform Act, when an office that requires Senate confirmation becomes vacant, “the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346.” The time limitation set by that section is 210 days.
The law stipulates that, if the president submits a nomination to the Senate, the 210-day limit can be extended as long as the nomination is pending in the Senate. But it also stipulates that if an acting officer violates this time limitation, all actions taken by that individual “shall have no force or effect.”
Which brings us to Gupta. Her biography on the Civil Rights Division website says she was appointed on Oct. 15, 2014, by President Barack Obama “to lead the Civil Rights Division at the U.S. Department of Justice.” It describes her as the “chief civil rights prosecutor for the United States.”
The official Justice Department press release from that same day states that Gupta will “serve as principal deputy assistant attorney general and acting assistant attorney general for the Civil Rights Division” (emphasis added).
Why is this important? Because Obama never actually nominated Gupta to be the assistant attorney general for Civil Rights, nor did he ever recess appoint her into the job.
The “principal deputy” position she holds is the No. 2 position in the division—the equivalent of the “first assistant” position specified in the Federal Vacancies Reform Act.
An Aug. 7, 2001, opinion (25 Op. O.L.C. 177 (2001)) by the Justice Department’s Office of Legal Counsel confirmed this interpretation. It states that the principal deputy—“a term of art that refers to the top deputy of a presidentially-appointed, Senate-confirmed officer”—qualifies as the “first assistant” for purposes of the Federal Vacancies Reform Act.
Obama never formally nominated anyone to fill this post after Gupta was appointed. Consequently, Gupta has remained the designated acting assistant attorney general since that designation was made on Oct. 15, 2014. That means her 210 days of being able to hold the acting position expired on May 13, 2015, 18 months ago.
Under DOJ regulations (28 CFR §0.50), enforcement of “all federal statutes affecting civil rights, including those pertaining to elections and voting, public accommodations, public facilities, school desegregation, employment, … housing, abortion, … and authorization of litigation in such enforcement” is “assigned to … the assistant attorney general, Civil Rights Division.”
Thus, it is the assistant attorney general who has the authority to enforce the law—not any of the subordinate staff within the Civil Rights Division.