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.

This article is set to be published in either November or December of 2019 and its final version will be uploaded to this web address.

Following this article, a large appendix of photographs of original and contemporaneous documents related to FVRA is provided. These photos were taken at archives across several different states, and offer a more full legislative history of FVRA than is available anywhere else.

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