A New Way That Obama's Justice Department Breaks the Law

[Leroy N. Soetoro]

http://www.nationalreview.com/article/443160/justice-department-civil-
rights-division-vanita-gupta-illegally%20appointed-federal-vacancies-
reform-act

History doesn’t repeat, but it rhymes. Eighteen years ago, without the
Senate’s consent, Bill Clinton illegally appointed Bill Lann Lee to head
the Justice Department’s Civil Rights Division. The uproar that resulted
led Congress to pass the Federal Vacancies Reform Act (FVRA), a major
reform of our vacancies law, limiting the time someone can be an “acting”
high official without Senate confirmation. Now under the Obama
administration, that same law may be the undoing of another illegally
appointed civil-rights head. Bill Lee, thy rhyme is Vanita Gupta.

The current saga in the Civil Rights Division began nearly three and a
half years ago, when its leader, Tom Perez — the embodiment of the Peter
Principle, whereby managers rise to their level of incompetence — was
promoted to the position of secretary of labor. President Obama nominated
Debo Adegbile, formerly an attorney with the NAACP (and this week
appointed to the U.S. Civil Rights Commission), to replace Perez. But
Adegbile’s nomination immediately ran into severe Senate headwinds. During
his time at the NAACP, he contributed to a brief on behalf of the
convicted cop-killer and cause célèbre Mumia Abu-Jamal. That connection
prompted an outpouring of objections, stalling his nomination.

While Adegbile’s nomination was pending in the Senate, the civil-rights
shop was led by a succession of “acting heads,” as permitted under the
FVRA. Eventually, in September 2014, Adegbile withdrew his nomination in
the face of certain defeat. At that moment, an important statutory timer
began running: Acting officials may serve for a maximum of only seven
months after a permanent nominee’s withdrawal. This time limit was put
into the FVRA to incentivize the president and Senate to reach consensus
on permanent officials to fill a given vacancy. But here, President Obama
decided that trying to find someone acceptable to the Senate wasn’t worth
the hassle — and so he simply hasn’t sent up a new nominee. The seven-
month clock, meanwhile, ran out in April 2015. Vanita Gupta, the
division’s deputy head, has continued serving as acting chief, although,
according to the law, her time was up. The FVRA is clear: Once an acting
officer’s seven months have expired, “the office shall remain vacant; and
. . . only the head of such Executive agency may perform any function or
duty of such office.” In plain English, this means that Attorney General
Loretta Lynch herself, not Vanita Gupta, became and remains the only
person authorized to lead the Civil Rights Division. Yet Gupta has stayed
on the job as if she were still the lawful boss, changing nothing except
the title she uses to sign her orders. The head of the Civil Rights
Division is charged with, among other powers, conducting handling, or
supervising, “enforcement of all Federal statutes affecting civil rights .
. . and authorization of litigation in such enforcement.”

How has Gupta justified her continued exercise of this power? The
strongest clue is in a letter she sent to North Carolina governor Pat
McCrory in May, informing him of an impending Title VII suit: The attorney
general “may apply to the appropriate court for an order that will ensure
compliance with Title VII,” she wrotea. “This responsibility has been
delegated to the Principal Deputy Assistant Attorney General of the Civil
Rights Division” — that is, to Gupta herself. The problem with this
argument is that the FVRA was written specifically to prevent such a work-
around. When there’s no valid acting officer, the department head — here,
the attorney general — may not delegate that officer’s duties to anyone
else unless a statute “expressly authorizes” her “to designate an officer”
to perform those duties. Does such an express statutory authorization
exist here? Gupta might point to 28 U.S.C. § 510, which declares that “the
Attorney General may from time to time . . . authoriz[e] the performance
by any other officer, employee, or agency of the Department of Justice of
any function of the Attorney General.”

This is where the strange rhyming history comes full circle. It was
precisely this statute that the Clinton administration invoked to install
Bill Lann Lee without Senate confirmation. In response to that ploy, the
FVRA includes the following language: “Any statutory provision providing
general authority to the head of an Executive agency . . . to delegate
duties . . . [to] officers or employees of such Executive agency, is not a
statutory provision” that qualifies as express authorization. And just in
case this wasn’t clear enough, the FVRA’s sponsors referred specifically
to 28 U.S.C. § 510 as one statute that “shall not be construed as
providing an alternative means of filling vacancies.” The FVRA declares
that all actions taken by unauthorized officers are void, which means that
every enforcement proceeding brought by Gupta in the last 20 months is now
susceptible to legal challenge. As it happens, the Supreme Court is
currently considering National Labor Relations Board v. SW General, Inc.,
a case challenging the legality of an acting officer. (There the issue is
over who may serve in that temporary capacity, the other side of the
official-vacancy coin.) Given the shenanigans in the Civil Rights
Division, it may not be long before people aggrieved by Gupta’s activism
also find their way to court. — Ilya Shapiro is a senior fellow in
constitutional studies at the Cato Institute, where Thomas Berry is a
legal associate. They filed a brief in the referenced FVRA case, NLRB v.
SW General.


--
Donald J. Trump, 306 electoral votes to 232, defeated compulsive liar in
denial Hillary Rodham Clinton and put an end to Barack Obama on November
8, 2016. The clown car parade of the democrat party ran out of gas.

ObamaCare is a total 100% failure and no lie that can be put forth by its
supporters can dispute that.

Obama jobs, the result of ObamaCare. 12-15 working hours a week at minimum
wage, no benefits and the primary revenue stream for ObamaCare. It can't
be funded with money people don't have, yet liberals lie about how great
it is.

His Omnipotence Barack Hussein Obama, declared himself "Pooptator" of all
mentally ill homosexuals and crossdressers, while declaring where they
will defecate.

Obama increased total debt from $10 trillion to $20 trillion in the eight
years he has been in office, and sold out heterosexuals for Hollywood
queer liberal democrat donors.

Loretta Fuddy, killed after she "verified" Obama's phony birth
certificate.