The Vacancies Act and an Acting Attorney General

The President’s November 2018 designation of Matthew Whitaker to be the Acting Attorney General was unprecedented and calls into question several legal issues. Though many are based on questions of constitutionality, there is a strong and novel argument that the statute used by the President to designate Mr. Whitaker, the Federal Vacancies Reform Act (FVRA), may not be used in such a way. Instead, a separate office-specific statute, 28 U.S.C. § 508, alone controls who may become the Acting Attorney General. By presenting never-before-seen legislative histories to support that conclusion, and by separately applying well-settled canons of statutory construction, it also becomes clear that FVRA cannot be used to designate persons to act in other offices that have their own specific succession statute.