The Vacancies Act and an Acting Attorney General

JurisdictionUnited States,Federal
Publication year2020
CitationVol. 36 No. 3

The Vacancies Act and an Acting Attorney General

Stephen Migala

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Stephen Migala*


The President's November 2018 designation of Matthew Whitaker to be the Acting Attorney General was unprecedented and calls into question several legal issues. Though many are based on questions of constitutionality, there is a strong and novel argument that the statute used by the President to designate Mr. Whitaker, the Federal Vacancies Reform Act (FVRA), may not be used in such a way. Instead, a separate office-specific statute, 28 U.S.C. § 508, alone controls who may become the Acting Attorney General. By presenting never-before-seen legislative histories to support that conclusion, and by separately applying well-settled canons of statutory construction, it also becomes clear that FVRA cannot be used to designate persons to act in other offices that have their own specific succession statute.


The day after the 2018 national congressional election, the President took an unprecedented action. By appointing Matthew Whitaker as Acting Attorney General, the President, for the first time in the history of the Department of Justice, designated someone to act as Attorney General who was not an officer of the United States.1 That Mr. Whitaker served for roughly 100 days, and that the President placed him in office after effectively removing the former Attorney General,

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makes the situation all the more unprecedented and legally suspect on several distinct grounds rooted in statute and the Constitution.

But rather than address grave constitutional questions that courts tend to consider last or altogether avoid, this Article aims to focus on a principal and dispositive argument that has generally been overlooked: the statutory law used to designate Mr. Whitaker as Acting Attorney General—the Federal Vacancies Reform Act of 1998 (FVRA)2 —may not be used to designate someone to act as Attorney General. Instead, the authority to act as Attorney General is derived from one statute alone: 28 U.S.C. § 508. That authority automatically vests the power to act in the Deputy Attorney General and several other Senate-confirmed Department of Justice (DOJ) officials in a specified sequence.3 It is not subject to presidential discretion, it is not subverted or displaced by FVRA, and most significantly, the President may not choose between FVRA and § 508 to determine who can become Acting Attorney General.

This Article will show that since 1873, all prior versions of FVRA, known as the "Vacancies Act," gave presidents broad discretion to appoint Senate-confirmed officers—but they consistently and expressly excluded only one office from that broad authority: that of Attorney General. The most recent version of the Vacancies Act, FVRA, was enacted in 1998 and aimed to continue that long-standing axiom. While FVRA omitted the stand-alone clause that explicitly exempted the office of Attorney General from the reach of any Vacancies Act, FVRA functionally retained that clause within a broader and subsuming categorical exemption. In other words, by categorically exempting automatic succession statutes like § 508, FVRA not only continued the 125-year exemption for the office of Attorney General, but also exempted many other high-level offices where Congress already designated a distinct order of succession.

In arriving at this conclusion, this Article takes a position directly contrary to that of DOJ's Office of Legal Counsel (OLC), whose November 2018 opinion expressly sanctioned the appointment of Mr.

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Whitaker.4 But, as this Article will show, OLC's opinion and reasoning contained many flaws and incorrect assumptions. To elucidate OLC's errors, this Article analyzes the plain text of FVRA, its statutory evolution, the perceived ill the law attempted to remedy, key floor statements by its principal authors, contemporary understandings, historical practices, canons of statutory construction, and other context to dispel each of OLC's main points in turn.

But beyond simply discrediting OLC's arguments, this Article also argues in the affirmative by providing clear support for its own position with legislative histories not recounted anywhere else. Using contemporaneous congressional memoranda and transcripts recently made available from the National Archives, alongside documents from the archives of three of the key sponsoring Senators, this Article's conclusion becomes even more evident: FVRA cannot override the automatic, specific, and required authority in 28 U.S.C. § 508 for certain designated officers to act as Attorney General.

The consequence of this conclusion is significant and is not made lightly. It means that the law the President relied on to appoint Mr. Whitaker, and on which Mr. Whitaker's authority relied, cannot be used. It also means that under the same FVRA statute, any official functions or duties assigned by Congress solely to the Attorney General and taken by Mr. Whitaker while acting in that office were void ab initio and may not later be ratified.

While this Article focuses on FVRA and § 508, the analysis performed here is equally applicable to any office for which Congress has specifically designated an order of succession. In the case of such office-specific succession statutes, including § 508, it will be shown that the President has no authority or discretion to subvert them using FVRA or any other general statute.

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To conduct a thoughtful analysis, the key statutes, as they currently stand, must first be understood. To aid in this preliminary step, sections I.A and I.B introduce relevant parts of the two main statutes at issue: (1) 28 U.S.C. § 508, which sets forth an automatic order of succession for the office of Attorney General; and (2) 5 U.S.C. §§ 3345-3349d, FVRA, which broadly allows the President to fill various vacancies subject to certain limitations.

Those familiar with the two statutes may wish to begin at Part II, where helpful histories regarding both laws are presented. There, sections A and B explain the history of § 508 and the Vacancies Act to show the continuity of the long-standing axiom that § 508 cannot be displaced or avoided in favor of a vacancies act. Afterwards, section C summarizes the context for what led Congress to pass the newest version of the Vacancies Act, FVRA.

Section III.A then amplifies that context with analysis and archival attestations. By presenting never-before-published legislative histories of FVRA, enormous light is shone on what Congress intended to accomplish and what it thought its words would mean. Tied together with the statutory and contextual histories presented in preceding parts, OLC's principal arguments supporting Mr. Whitaker's appointment, succinctly introduced there, begin to deflate. Next, section III.B briefly analyzes the two statutes according to basic principles of statutory construction before offering the most harmonious way to read the two statutes, give effect to each, and honor both the text and intent of Congress. Section III.C then analyzes the related issue of enforcement against those who do not legally act in another office. Finally, this Article's conclusions are summarized in Part IV.

For those who wish to view the full context of the never-before-published documents on which parts of this Article rely and which were gathered from across four separate archives,5 this link,

[Page 703], provides a full appendix consisting of the whole part of every document excerpted herein and a few others which, for sake of space, were not. When referenced in this Article, each excerpt will append a bracketed citation, pointing to the page in the appendix where the whole document may be viewed, for example, "[App. at ___ ]."6

I. The Two Relevant Statutes

An analysis always begins at the text of a statute. To facilitate that, this Article first presents key text and summaries of the statutes at play: 28 U.S.C. § 508 and FVRA.7

A. The Specific Succession Statute for the Office of Attorney General (§ 508)

The authority to act in the office of Attorney General in case of vacancy is vested in certain officers by 28 U.S.C. § 508. With a lineage that traces back to DOJ's Organic Act in 1870, this statute has, for nearly 150 years, entrusted leadership of DOJ to only certain senior and Senate-confirmed officers within the same department.8 The succession is automatic and vests power immediately. No action, paperwork, or other authorization is required. From the moment of vacancy or other qualifying reason, the designee is immediately empowered. The statute is couched in mandatory terms and thus affords no other discretion or displacement from its own required order. So important is the position, that in case one identified officer

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cannot assume the office, the statute has evolved to include many more designees in a further order of succession.9 The Attorney General Succession Statute, or "§ 508" for short, reads as follows:

§ 508. Vacancies

(a) In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose of section 3345 of title 5 [a specific cross-reference to a single section in the Vacancies Act] the Deputy Attorney General is the first assistant to the Attorney General.

(b) When by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General, the Associate Attorney General shall act as Attorney General. The Attorney General may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General.10

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