Obama didn’t use the correct magic pen.
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.”