Is the Appointment of an Acting Attorney General Allowed by Statute?, by Stephen Migala

by Guest Blogger — Wednesday, Dec. 12, 2018

Although recent news has overshadowed the once-raging debate behind Matthew Whitaker’s appointment as acting Attorney General, the debate will soon reappear atop news feeds as a federal court in Maryland holds a hearing on the legality of the appointment on December 19th. At the same time, challenges to Mr. Whitaker’s appointment have been brought before at least four other courts, focusing mainly on the unconstitutionality of the appointment.

Related to that very issue, those who follow this blog may have been as intrigued as I was to read Thomas Berry’s recent take on the unconstitutionality of the appointment. Indeed, it stood out among many other constitutional arguments made to courts and advanced by commentators. But as the doctrine of constitutional avoidance instructs courts to first look to other legal arguments to resolve a dispute, more attention needs to be paid to a novel and solely statutory argument that the appointment was unlawful.

In this piece, I provide a summary of a very detailed article I’ve written on the interplay between the statute the President used to appoint Mr. Whitaker, the Federal Vacancies Reform Act of 1998, or “FVRA,” and the statute in title 28, sometimes known as the Attorney General Succession Act, which I’ll call simply “§ 508.” For ease of reading, I avoid heavy citation, but those who are curious for more support may look to my much longer article.

Here, I’ll quickly recap the two key statutes, recount some relevant legislative history and context, and then introduce some little-known codification errors that affect their reading. By the end of this piece, I’ll offer a plain-text reading of the statutes that avoids getting bogged down in needless canons of statutory interpretation. Textualists and purposivists might even find themselves similarly assuaged.

The analysis will conclude that the President has misapplied FVRA and that Mr. Whitaker’s appointment is unlawful under statute. As a consequence, many decisions made by Mr. Whitaker have a significant chance of being overturned if a court agrees

The Two Statutes at Issue: FVRA & § 508

  • 28 U.S.C. § 508 designates and requires that the Deputy Attorney General, then the Associate Attorney General, followed by other senior Senate-confirmed officials, automatically act as Attorney General in case of vacancy.
  • FVRA sits at 5 U.S.C. § 3345–3349d. It has a core default provision where the first assistant (e. deputy) is automatically empowered to act in a higher vacant office. However, FVRA permits that default to be displaced at the discretion of the President, who may either appoint any other Senate-confirmed officer, or as a new feature of the law passed in 1998, may instead choose to appoint any qualifying senior-level employee of the same agency. It is this last, recent provision that the President used to appoint Mr. Whitaker.

On a passing glance, the two laws appear to conflict. One, § 508, orders a required and automatic line of succession, in this case designating the Deputy Attorney General to act as Attorney General. The other, FVRA, allows a result with many different variations, this time leading to Mr. Whitaker’s appointment to act in the same office. Two laws, two different results.

Normally, the next step in an analysis would require a heavy dose of research and Sutherland’s heavier treatise on statutory interpretation. But that regimen only begins when laws conflict. Thankfully, those canons and conflicts cede to a more cardinal rule—the harmonious-reading principle: “If by any fair course of reasoning the two [statutes] can be reconciled, both shall stand.” E.g., English v. Trump, 279 F. Supp. 3d 307, 324 (D.D.C. 2018); see also 1A Sutherland Statutory Construction § 23:10 (7th ed.) (find a harmonious reading where reasonably possible; construe the statute strictly to effect its operation with previous legislation).

Fortunately, it just so happens that a harmonious reading is not only possible, but was actually intended by FVRA’s authors.

Codification Context: Why § 508 Was Always Explicitly Exempted from the Vacancies Act

Before immediately subscribing to a harmonious reading, consider some supporting history and context. FVRA was passed with express knowledge of § 508. In fact, for the 125 years before FVRA was passed, codifiers and Congress included an explicit provision that exempted the office of Attorney General from being filled through the prior version of FVRA. Strangely, that provision came to be by quirk of history.

The explicit exemption for the office of Attorney General first appeared in the Vacancies Act (the precursor to FVRA) in 1873. At that time, the first-ever official compilation and revision of statutes had just been completed. But unlike how laws are codified today, those first codifiers were granted unusually broad powers to alter existing statutes to “bring together all statutes and parts of statutes … [by] omitting redundant or obsolete enactments, and making such alterations as may necessary to reconcile the contradictions.” 14 Stat. 7475. It took those codifiers seven years to index, compile, and even rewrite some laws to issue the Revised Statutes. And the Vacancies Act, passed in 1868, happened to be one of those altered laws.

By its own original text, the Vacancies Act repealed all other laws pertaining to appointments and stated it was the only way to fill vacancies, apart from recess appointments. 15 Stat. 168 §§ 2, 4. However, just two years later, in 1870, DOJ’s establishing act was passed into law. Since the DOJ act had an explicit provision naming the Solicitor General to act as Attorney General in case of vacancy (16 Stat. 162 § 2), the codifiers took it upon themselves to “revise” the Vacancies Act in the first Revised Statutes and write into its text one exemption: the office of Attorney General.

Within a short time, Congress found major problems with the Revised Statutes it had enacted as positive law. It called for fixes, and restricted the ability of future codifiers to alter text, instead instructing them to use margin notes to indicate potential amendatory acts. 19 Stat. 268 (1877). However, the initial alteration of the Vacancies Act remained unaffected and the change lasted for 125 years.

Although future statutes would add similar provisions regarding other departments’ lines of succession, DOJ’s happened to be the only law that altered the Vacancies Act because it was the only one passed in the narrow window when codifiers had such wide editorial discretion. Still, it was generally understood that other, later-enacted specific designation statutes were superseding. E.g., S. Rep. No. 100-317, 100th Cong. 2d Sess. 14 (1988) (“The exclusive authority of the Vacancies Act would only be overcome by specific statutory language providing some other means for filling vacancies.”).

In 1998, when FVRA was introduced in the Senate as S.2176, the same exemption provision for the Attorney General’s office remained in the bill’s first and final drafts; however, it was omitted from the enacted version of FVRA. Many proponents of Mr. Whitaker’s appointment rely on this omission to divine some kind of intent by Congress not to keep the long-standing practice of exempting the office of Attorney General. That guess is flatly unsupported. As will be explained, the specific exemption for only one out of the many other succession statutes was removed to broaden the exemption—not to end it.

FVRA: A New Version of the Vacancies Act

When Congress drafted and passed FVRA in 1998, it primarily aimed to fix a contentious interpretation involving the Vacancies Act. That prior law always had language professing its own exclusivity, but DOJ and other agencies construed it to give way to later-enacted and more specific statutes. To the irritation of many in the Senate, DOJ used that construction to justify appointing officials not through the Vacancies Act and its associated time limits, but through so-called “housekeeping” or “vesting and delegation” statutes, which did not have time limits. E.g., 28 U.S.C. §§ 509, 510; 22 Op. O.L.C. 44, 47 (1998). Those types of statutes, passed after the Vacancies Act, granted wide authority for a department head to delegate any authority vested to them to any officer or employee of their choosing. Those statutes also effectively allowed appointees to avoid the Senate confirmation process. By 1998, around 20% of PAS (Presidentially Appointed and Senate confirmed) positions were filled in a similar manner.

The tipping point involved the office of Assistant Attorney General for Civil Rights. After its confirmed officeholder resigned, and after an unconfirmed official acted in that office for 181 days, the President nominated Mr. Bill Lann Lee to the position, knowing the Senate would be unlikely to confirm him. Once the failed nomination was returned by the Senate, the President had the Attorney General appoint him anyway through DOJ’s housekeeping powers in § 510. Mr. Lee ultimately served in the office in an acting capacity for nearly three years before the President appointed him to the same position via a recess appointment. This was too much for Senators Thompson and Byrd and they sought a way to close the construction that DOJ had reasonably read as superseding the Vacancies Act.

The solution? Something offered by GAO during hearings on the issue: “Adding an amendment to explicitly provide that the Vacancies Act can be superseded only by another statute that provides an alternative means for filling a specific identified vacancy.” In other words, FVRA aimed to target general housekeeping authorities granting broad powers to appoint any unspecified person to an unspecified position. It did not target, and in fact expressly retained laws that designated specific persons to specific positions.

FVRA’s Structure: Catch and Release

FVRA was ultimately implemented via a common legislative tactic known as “catch and release.” To ensure that all vacancies would have to go through the rubric of FVRA, the drafters first wrote § 3347 to say that the law was “applicable to any office.” In that way, they would catch all vacancies. Next, they would have mechanisms to keep existing specific statutes and “release” them from the catch-all provision of FVRA. That § 3347 remained mostly intact from bill to act, with a stylistic change of “exclusive” substituted at the last minute for “applicable to any office,” just to make sure DOJ could not read in another loophole.

But the law was passed awkwardly. Months of hearings, markups, and committee meetings for S. 2176 resulted in the bill being reported to the Senate floor in July 1998. However, by late September it could not survive a filibuster. Instead, Senator Byrd worked to slip it into a House omnibus bill in October and it was enacted with a few changes. In lieu of any managers’ or conference report, Senators Thompson and Byrd took to the floor to explain the changes.

However, no indicia or even whisper of any intent to do away with § 508 was ever discussed in the Senators’ statements nor in any other part of any legislative history. In fact, several statements show those kinds of statutes were intended to remain controlling. The Senator who offered the key committee amendment that would become § 3347(a)(1)(B) said it would “grandfather a number of the existing statutes that bill presumably does not intend to supplant.” He went on to say, “it is not our intention to override those specific judgments by previous Congresses that have taken different positions out of the Vacancies Act.” After his descriptions, the amendment was adopted unanimously. The Senate Report would later state that the amendment “retained existing statutes that by their own terms” filled PAS positions. Even FVRA’s principal author, Senator Thompson, described such statutes as being “preserved” and retained “in lieu of” FVRA.

Accordingly, throughout legislative history it was clear that FVRA was meant only to catch “housekeeping” statutes like § 510, not specific and automatic statutes like § 508, which were to be retained and controlling by their own terms.

FVRA Did Not Change the Understanding of Automatic Designation Statutes

So why did the 125-year-old, editorialized, explicit exemption for § 508 disappear in FVRA? Well, it didn’t disappear. It was merely subsumed and viewed as redundant in light of § 3347(a)(1)(B), which captured not only § 508, but even more later-enacted and understood-as-superseding automatic succession provisions across more departments and agencies. To understand how, look at the structure of § 3347:

(a) [FVRA is the] exclusive means for temporarily authorizing an acting official …, unless-

(1) a statutory provision expressly-

(A) authorizes the President, a court, or the head of an Executive department, to designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or

(B) designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; ….

The Senate Report specifically claimed it was aware of 40-some provisions that were thought to be retained by this section, and even listed each one—including § 508. But listing each individual statute in FVRA’s text was impractical. Moreover, the Senate was not sure it had all such provisions. Instead, two categories were created to “release” and thus “retain” all similar existing provisions:

  • (1)(A)-type permissive statutes authorize—but do not require—the President to designate an unspecified person to act in higher office. These discretionary types are usually phrased as the President “may” appoint. The President may choose to appoint an unspecified person to a specified office, or he may not, in which case the office could remain vacant.
  • (1)(B)-type statutes, by contrast, require that power is automatically vested to a specific pre-designated officer to act in higher office. No separate action is needed. It operates like a will in that once the triggering event happens, in this case a vacancy, the power to act has immediately transferred. Under these terms, the specified office is too vital to sit vacant. This is often written in statutes as “[an official] shall act.”

Thus, § 508, clearly falling into the (1)(B) category, was retained and should have remained unaffected by FVRA. But had the separate provision exempting only § 508 been kept, it would have not only been redundant, but it could have led to confusion and unintended distinctions between it and other (1)(B)-type statutes.

Moreover, the (1)(B) provision was only added as an amendment to the draft bill after it was introduced with the historical exemption for § 508 and the Attorney General’s office. It was therefore all the more likely that once (1)(B) was added, it negated the need for the § 508 exemption, especially since many more retained statutes were understood to be similarly controlling.

Consequently, the omission of the explicit exemption for § 508 effectively changed nothing because the new (1)(B) provision accomplished the same result.

Another Codification Quirk: § 508(a)

Another unnecessary ambiguity has occasionally been read to affect the interplay of these two statutes, this time concerning § 508(a). That section reads:

“(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….”

Some have been confused by “may exercise,” and argue that it means the Deputy is not required to act in higher office or that it is not a (1)(B)-type statute. This unfortunate wording, however, is not the true law. The source law stems from DOJ’s Organic Act, which stated:

“In case of a vacancy in the office of Attorney General, or of his absence or disability, the Solicitor General shall have power to exercise all the duties of that office.”

16 Stat. 162 (1870); 5 U.S.C. § 293 (1952). That power first vested in the Solicitor General was later transferred in 1953 by Reorganization Plan No. 4 to the 1950-created position of Deputy Attorney General. 67 Stat. 636 (1953); 15 Fed. Reg. 3173, § 3 (1950). In an accompanying message to Congress—which would then have 60 days to veto the Plan before it automatically became law—the Plan’s sole responsible author, President Eisenhower, characterized the law as “vesting” and “requiring” the designated officer “to exercise the duties of the Attorney General … in case of a vacancy.” Accordingly, the same “shall have power to exercise” should have simply been written after “Deputy Attorney General.”

But during the 1966 codification of these provisions, the codifiers attempted to simplify the language and, without context, turned “have the power” into “may.” No explanation was provided as to why “shall” was omitted. Regardless, the codification statute stated no substantive changes were intended, and case law makes clear that the source statute is still the true legal text. Accordingly, § 508(a) affords no discretion and actually requires the Deputy to act in office.

Moreover, the remainder of § 508 shows a continued intent to supersede the Vacancies Act by designating several more people in an order of succession. In this way, the law assured that only people competent and confirmed by the Senate could lead DOJ. After all, unlike most other departments a degree and experience in law was required for the position. That would have made it hard, for example, for the Deputy Treasury Secretary to effectively run Justice.

Another reason why “may” might have been inserted by the codifiers, is that the position is itself elective and not required to be filled: “The President may appoint, by and with the advice and consent of the Senate, a Deputy Attorney General.” 28 U.S.C. § 504. And so, the term “may” could also have been thought to align better with § 504, or with the possibility that the office might be vacant.

But one thing is clear regardless of that subsection, § 508 as a whole requires that some Senate-confirmed officer act as 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.”

In other words, § 508 is not only a statute retained by FVRA, but it contains a mandatory “shall act” requirement that affords no discretion. The clear intent of the law was to have several Senate-confirmed DOJ officers, “learned in law,” who could step in immediately into a vital position that must be filled.

The Harmonious Reading

With this context, knowing that § 508 is a required and automatic designation statute, and that FVRA “released” and “retained” such statutes which control “by their own terms,” we can now return to how to read the two acts together.

The solution is not difficult. It is basic “may” vs. “shall.” Where one statute has an explicit requirement and the other is permissive, the mandatory “shall” requirement must control.

OLC and other advocates of Mr. Whitaker’s appointment admit that § 508 is retained, but create a fiction with no textual or historical support to say FVRA merely offers a parallel or alternative appointment vehicle in addition to § 508. OLC particularly relies on the argument that nothing in FVRA says it cannot be used as an alternative. But that strained one-way reading simply ignores the violation of § 508. Moreover, by not calling their reading a conflict, proponents happily avoid turning to canons of statutory interpretation, which would likely hurt their position.

Regardless, their argument effectively reads in an implied repeal of over 40 statutes expressly retained by FVRA, plus a 125-year-plus practice and understanding—without so much as a whisper of an intent by Congress to do so. Moreover, they ignore the heavy burden “to demonstrate beyond question that [Congress] intended in [FVRA] the unequivocal purpose to effect a repeal.” 1A Sutherland § 23:10 (7th ed.).

But as so often has been stated: Congress does not hide elephants in mouseholes. There is no reading of the two statutes “co-existing” that does not lead to a monumental change in practice across the entire government, and an implied repeal. There is clearly a different result through § 508 than through FVRA. However, there is a way to read both to get the same result.

For (1)(A)-category statutes, which are by definition permissive, either those laws or FVRA may be used to appoint. If the President chooses not to appoint through a (1)(A)-type statute, then that law is not violated. Consequently, he or she is free to choose from a different statute because it does not conflict. In the same vein, FVRA not only exempts and retains those permissive statutes, but is itself permissive and discretionary: “President … may direct a person … to perform.” 5 U.S.C. § 3345(a)(2), (3). Accordingly, FVRA is not violated if the President chooses either not to act or to use an alternate appointment mechanism. But the same does not hold true for the other (1)(B) category.

For (1)(B)-category statutes, the acting authority happens automatically, requires no additional action, and affords officials no discretion. Those predetermined people “shall act” in higher office. As a result, required statutes like § 508 must be used because there is no reading of FVRA as an “alternative” that would not result in a violation ofviolating § 508. But the reverse is not true. Since FVRA is discretionary—and since it specifically retained this category encompassing § 508—allowing § 508 to have effect does not violate FVRA.

 This can be the only harmonious reading that gives effect to both laws and results in no violation for either. No implicit repeal. No silent overturning of a century-plus of understandings and practices. No possibly conflicting interpretive canons. And no picking and choosing from which law you happen to favor best. The laws are then used according to their own terms: permissive or mandatory. It can be that easy.

Moreover, to Thomas Berry’s well-articulated point, this reading avoids reaching grave constitutional questions. E.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg., 485 U.S. 568, 575 (1988) (“[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.”).

Here, the intent of Congress was fixed by an understanding of how automatic vesting statutes worked for over a century, and legislative history shows an irrefutable attempt to keep those statutes, practices, and understandings. But even more significantly, nothing in a plain-text reading could reasonably be read to allow a parallel-alternatives construction, let alone authority to disregard other mandatory statutes.

Alternative Reading: Absurd Results

Procedural and construction questions aside, the practical results of ignoring certain laws leads to clear absurdities not sanctioned by the law or by reasonable persons. First, it allows a non-Senate-confirmed employee supervisory and removal (firing) powers over persons the Senate has approved and vetted. This alone is awkward, but it gets absurd.

If FVRA really somehow silently allows other identified statutes to be displaced, then let’s examine a few that fall under the (1)(B) category. Start with the Commandant of the Marine Corps. Under the administration’s reading, 10 U.S.C. § 5044(a) would be rendered a nullity. The requirement that the acting office of Commandant of the Marine Corps be held by an active-duty Marine Corps officer with a four-star rank could be abandoned when FVRA is used as an “alternative.” Since appointees can often serve in dual roles, perhaps the President could appoint Mr. Whitaker to be an acting General–Attorney–General. Or would it be acting Attorney General^2?

Of course, the notion of appointing a civilian to be the top military officer is ludicrous. Yet that is the reading that would result from using FVRA as an alternative appointment vehicle to disregard other mandatory statutes. The same is true of several more specifically retained statutes including the top military officer of each branch of the armed forces and the Chairman of the Joint Chiefs.

Consider another example. Before a provision was added to the final act to make FVRA inapplicable to Article I courts, the draft bill would have allowed those kinds of appointments. In fact, the statute affecting the Chief Judge of the Court of Appeals for Veterans Claims was specifically listed as a retained. Under the alternative-approach reading, any senior court employee, even a non-lawyer, could act as chief judge. The same might have even applied to the chief judge of the Court of Federal Claims, and that court’s awesome authority to find billions of dollars in damages owed by the United States. More examples are available, but the point has been made.

The root problem that FVRA wanted to tackle was officials avoiding the Senate confirmation process. To do this, FVRA went after housekeeping statutes and not much else. Other monumental changes from prior acts were not made. In fact, reading FVRA as an alternative to the automatic designation statutes would itself mark a monumental shift.

Moreover, such a reading would allow the President’s appointees to evade the Senate even more—contrary to the law’s express purpose. The President could simply keep Mr. Whitaker in place and send unpalatable nominees to the Senate, knowing they would be rejected, and thus allow Mr. Whitaker to serve for 630 days. The President could even appoint him to act as Deputy Attorney General next. Furthermore, reading FVRA to be an alternative could result in the President appointing someone under that law who has been expressly rejected by the Senate—further abrogating the Constitution.

Reading § 508’s plain text to control, instead of FVRA, avoids these messes imposed with no textual or legislative support. FVRA was not designed or intended to allow other statutes to be disregarded, and no argument or history I’ve seen suggests otherwise.

Conclusion

In sum, Mr. Whitaker’s appointment was unlawful. There is no way to use FVRA that does not violate § 508. But there is a way to use § 508 that does not violate FVRA. Thus, a simple harmonious reading exists. It is plain, textual, simple, and practical. It first funnels an appointment statute through FVRA’s catch all, and then releases and retains the statute by its own terms. Such a reading avoids absurdities, avoids creating constitutional issues, avoids reading in enormous loopholes to evade the Senate, gives effect to scores of laws that Congress passed, is well-supported by over a century of practice, squares with legislative history, fits within the structure of the act, accomplishes the primary purposes of the law, and ensures that no position can be filled by favor rather than by constitutional process.

Stephen Migala is an attorney based in the District of Columbia. He graduated from Georgetown Law with a J.D. and an LL.M. in National Security Law. The opinions expressed here are personal, not tied to or made on behalf of any organization.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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