23 Nov The DOJ civil rights division may not have had any legal authority for the last year and a half
In 1997, Congress passed a law to the effect that the President cannot make any temporary appointments to an office that requires the consent of the Senate for longer than two hundred and ten days. Any action taken by the appointee beyond this time frame shall be null and void and have no force under the law. This law is called the Federal Vacancies Reform Act.
Vanita Gupita, the currently appointed acting head of the DOJs civil rights division, moved up to her current office under a provision in the FVRA that states that in the event that a position in the government that requires a confirmation is vacated, and the President does not nominate anyone else, the closest assistant shall take over the position for no longer than two hundred and ten days. Unless the president does nominate someone, in which case the time frame can be extended.
Now, Under DOJ regulations (28 CFR §0.50), enforcement of “all federal statutes affecting civil rights, including those pertaining to elections and voting, public accommodations, public facilities, school desegregation, employment, … housing, abortion, … and authorization of litigation in such enforcement” is “assigned to … the assistant attorney general, Civil Rights Division.”
Thus, it is the assistant attorney general who has the authority to enforce the law—not any of the subordinate staff within the Civil Rights Division.
This means that, since Obama never actually nominated Gupita to the job, or even did a recess appointment, Gupita’s time frame expired way back, on May 13, 2015, a good year and a half ago. So any and all actions taken by her division at this time have absolutely no legal value, her signing documents as a deputy doesn’t help her.
It’s a technicality, sure, but it can save a ton of people a lot of trouble.
People doing background checks, background check companies, anyone who ran into the Feds behind a corner where they had no business lurking (such as suing people for not hiring old ladies to serve as cocktail waitresses) just got a great doorway.