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…. 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.”
[Ms. Gupta] 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).
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.
The bottom line is that the Obama administration appears to have blatantly violated the Federal Vacancies Reform Act precisely because it didn’t want to comply with the confirmation requirement for Gupta. It has treated her as the head of the Civil Rights Division from the very first day she was hired and officially named as the acting assistant attorney general.
Hans von Spakovsky concludes by arguing that those groups targeted by Ms. Gupta’s Civil Rights Division might have a valid defense, under the Federal Vacancies Reform Act, as a means of avoiding actions rendered against them.