The Vacancies Act and an Acting Attorney General

Abstract

The President’s recent appointment of Matthew Whitaker as Acting Attorney General is unprecedented and calls into question several legal issues. Though most are based on questions of constitutionality, there is a strong and novel argument that the statute used by the President to make the appointment, FVRA, may not be used in such a way. Instead, a separate statute, 28 U.S.C. § 508, compels the Deputy Attorney General to take charge of the Justice Department. By presenting never-before-seen legislative histories to support that conclusion, it also becomes clear that FVRA cannot be used to make appointments to many other high-level offices covered by a specific statute. These conclusions are further affirmed by well-settled canons of statutory construction. Put simply, this article shows not only why the appointment of an Acting Attorney General is unlawful, but why any use of FVRA to displace a specific succession statute is similarly unlawful.

A large appendix of photographs of original congressional documents related to FVRA is available at the website of the publishing law journal: https://readingroom.law.gsu.edu/gsulr/vol36/iss3/4/ . Once at the website, scroll down to "Comments" and click on "Appendices - FVRA.pdf" to download.

These photos were taken at archives across several different states, and offer enormous insight into the legislative history of FVRA.

Keywords: Attorney General, Succession, Appointments, FVRA, Vacancies Act