Appointment of Interim U.S. Attorneys

The attorney general can appoint interim U.S. Attorneys to successive 120-day terms of office unless the nominee is someone to whom the Senate has refused to give advice and consent by a vote either in committee or on the floor.

Alina Habba's 120-day term as President Trump's appointed Interim U.S. Attorney for the State of New Jersey recently expired without the Senate ever voting on her nomination. A panel of U.S. District Court Judges used a rarely invoked and unconstitutional federal statute to appoint a new and different Interim U.S. Attorney for New Jersey, Desiree Leigh Grace, who had been Ms. Habba's first assistant.

Attorney General Bondi fired the court-appointed Interim U.S. Attorney the day she was appointed, saying "This Department of Justice does not tolerate rogue judges—especially when they threaten the President's core Article II powers."

On Thursday, July 24, President Trump withdrew Alina Habba's nomination to be U.S. Attorney for New Jersey, and Attorney General Bondi then appointed her First Assistant in that U.S. Attorney's Office and also appointed her Acting U.S. Attorney for New Jersey for the next 210 days under the Vacancies Act, 5 U.S.C. § 3345 et seq.

I do not think it was necessary to do that. I think Interim U.S. Attorneys, whose 120-day appointments have expired without the Senate ever voting on their nominations, can be reappointed to an indefinite number of 120-day terms as Interim U.S. Attorneys by the Attorney General under 28 U.S.C. § 546 until and unless the Senate votes down their nominations and so long as they have been nominated for the office in question.

The 120-day term limit does not bar reappointment if done by district court judges. Given that cross-branch appointment of inferior officers is unconstitutional, as I will explain below, there is no reason why 28 U.S.C. § 546 ought to be read as precluding the reappointment of nominated U.S. Attorneys whom Senators do not have the votes to defeat but whose confirmations they are able to delay.

Attorney General Robert Jackson in his famous speech on the role of the federal prosecutor pointed out that from 1789 to the present-day U.S. Attorneys have always required Senate confirmation because of their "immense power" and because they need to win "an expression of confidence in [their] character by both the legislative and the executive branches of the government." Jackson's point is certainly true. But a Senate minority that lacks the votes to reject a nominee cannot be rewarded if, after 120 days, they have used Senate procedure to prevent a vote from taking place.

This issue is coming up all over the country right now because Senate Democrats refuse to allow floor votes on President Trump's nominees to be U.S. Attorney. The matter is thus of great practical importance in the District of New Jersey and in other Districts as well.

The President is the nation's Prosecutor-in-Chief, with the Attorney General as his subordinate. The President has, both domestically and internationally, what the British referred to as the Monarch's Power of the Sword, in contrast to the Legislature's Power of the Purse. It is the President, himself, who swears to "take Care that the Laws be faithfully executed" using the Power of the Sword domestically. The Supreme Court held in Seila Law LLC v. Consumer Financial Protection Bureau (2020) that all of "[t]he executive Power" must be exercised by officers or employees who are removable at will by the President at any time.

The power to prosecute is a core "executive Power" as those words are used in Article II, Section 1. Only the President or the Attorney General can designate an Interim U.S. Attorney who will and must use only the "executive Power." The office of Interim U.S. Attorney is not quasi-judicial, or quasi-legislative. It involves solely the exercise of executive power. This means that only the Attorney General can appoint Interim U.S. Attorneys, and the President or Attorney General can and should on principle fire any Interim U.S. Attorney appointed by federal district judges.

Yes, it is true that the federal statute, 28 U.S.C. § 546, that governs appointment of Interim U.S. Attorneys—under some circumstances—allows federal district court judges to appoint Interim U.S. Attorneys. Versions of this unconstitutional law have been in the U.S Code since the Civil War, although they have rarely been invoked. That portion of § 546 is unconstitutional under Seila Law and Trump v. Wilcox (2025). Section 546 reads (with the unconstitutional language marked in bold):

(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.

(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.

(c) A person appointed as United States attorney under this section may serve until the earlier of—

(1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or

(2) the expiration of 120 days after appointment by the Attorney General under this section.

(d) If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.

Title 28 U.S.C. § 546(d) is unconstitutional under Seila Law because it allows the exercise of executive power by someone who has not been hired by the President or his Heads of Departments. It is also unconstitutional under the May 22, 2025, decision (on the so-called "shadow docket") in Trump v. Wilcox, which concluded that National Labor Relations Board Members and Merit Systems Protection Board Members had to be removable at will by the President, because they were exercising, in part, some portion of the President's "executive Power." Even setting aside the debate about removability of board members of supposedly independent quasi-judicial, quasi-legislative multi-member agencies, which were approved in Humphrey's Executor (1935), it has long been understood that, under the 1926 Myers v. United States precedent, all executive officers, such as a U.S. Attorney or an Interim U.S. Attorney, must be removable at will by the President or the Attorney General.

Since Interim U.S. Attorneys exercise exclusively executive power, two conclusions follow: First, 28 U.S.C. § 546(d) is unconstitutional insofar as it grants district judges the power sometimes to appoint officers who will exercise exclusively executive power. Second, Attorney General Bondi acted constitutionally when she fired the court appointed Interim U.S. Attorney.

Section 546(d) is also unconstitutional on Appointments Clause grounds for allowing a court appointed officer to exercise some portion of the President's "executive Power" in violation of Seila Law and of Trump v. Wilcox. Interim U.S. Attorneys are inferior officers whose appointments are governed by the following constitutional language:

[T]he Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Congress can delegate to a Head of a Department, like the Attorney General, the power to appoint an inferior executive branch officer to a congressionally created office, like the office of Interim U.S. Attorney. Or Congress can delegate to, for example, the Supreme Court, the power to appoint the Clerk of the Supreme Court, who is the officer of the Supreme Court of the United States responsible for overseeing filings with the court and maintaining its records, to a congressionally created office.

It is true that the text of the Inferior Officer Appointments Clause could be read as authorizing cross-branch appointments whereby judges can appoint Interim U.S. Attorneys, and the President or Attorney General Bondi could appoint the Clerk of the Supreme Court. The Clause does allow Congress to by "law" vest the appointment of inferior officer "as they think proper" in "the President alone, in the Courts of Law, or in the Heads of Departments."

It strains credulity, however, to assume that Congress could exercise its power to vest in the Courts of Law the power to appoint inferior executive branch officers, or that it could delegate to Attorney General Bondi the power to appoint inferior judicial branch officers like new Clerks of the U.S. Supreme Court.

This is an "Alice in Wonderland" absurd way to read the words "as they think proper." The far more likely meaning of those words is that Congress can delegate to the President, and not the Supreme Court, the power to hire the White House Chief of Staff or the White House Counsel who are inferior executive branch officers. Or it can delegate to the Supreme Court, and not to the President or Attorney General, the power to appoint an inferior judicial branch officer like the Clerk of the Supreme Court, or judicial employees like the nine justices' law clerks.

One might object that the President appoints Article III judges, who are judicial officers, so the Courts of Law should be able to appoint the White House Chief of Staff or the White House Counsel or Interim U.S. Attorneys who are executive inferior officers. But the President's power to appoint judges is constrained by the requirement that he must first nominate them, and the Senate must confirm them, before they can be appointed. Judges picking White House Chiefs of Staff, White House Counsels, or Interim U.S. Attorneys would not be constrained by the check of Senate confirmation, so the analogy fails.

Executive branch agencies do appoint Administrative Law judges (ALJs) who are inferior executive branch officers. But, in my opinion, that is only constitutional when a public benefit like social security disability benefits, or immigration into the U.S., or a suit for money damages against the U.S. is involved, as to which Congress has only partially waived its sovereign immunity. The disposal of public benefits in these cases is an exercise of executive power even though the ALJs who decide these cases have the prestigious but misleading title of "Judge."

The Supreme Court did uphold a court-appointed federal prosecutor in Morrison v. Olson (1988), but that case is no longer good law as to (1) its Appointments Clause holding; (2) its Removal Power holding; or (3) its cross-branch Appointments Clause holding. The Appointments Clause holding of Morrison was not followed in Edmond v. United States (1997) or in Free Enterprise Fund v. PCAOB (2010). The Removal Power holding of Morrison was not followed in Seila Law or in Trump v. Wilcox.

While the Supreme Court has not had the chance to pronounce specifically on the cross-branch Appointment of inferior officers like Interim U.S. Attorneys, it has made it clear in Seila Law and in Trump v. Wilcox that no inferior executive branch officer, who is appointed by the courts and not by the President or the Head of an executive Department, can ever exercise even a shred of the executive power. Yet executive power is the only power that court-appointed Interim U.S. Attorneys exercise. It is thus fair to conclude that the language allowing cross-branch appointment of inferior officers in Morrison is no longer good law.

Although the Supreme Court allowed the cross-branch appointment of minor inferior officers in Ex Parte Siebold (1880), in a brief casual construction, the better rule is that of Ex Parte Hennen (1839) where the Court held that,

The appointing power here designated, in the latter part of the section was no doubt intended to be exercised by the department of the government to which the officer to be appointed most appropriately belonged. The appointment of clerks of Courts properly belongs to the Courts of law; and that a clerk is one of the inferior officers contemplated by this provision in the Constitution cannot be questioned.

The rule of Ex Parte Hennen just quoted was demoted by Ex parte Siebold from the constitutional status to which Hennen meant it to apply to the status of mere guidance for Congress, though Siebold did not formally overrule Hennen. In my view, Hennen is clearly right, and Siebold is a much later and in my view erroneous construction of the constitutional text; so I think the Supreme Court should re-elevate Hennen to be the lead case on this question.

Since under Seila Law and Trump v. Wilcox, only the President or his agent the Attorney General can remove Interim U.S. Attorneys, who are not quasi-judicial or quasi-legislative officers, the rule of Hennen suggests that only the Attorney General has the power to appoint Interim U.S. Attorneys, which is what 28 U.S.C. § 546(a) says. To the extent Ex Parte Siebold suggests otherwise, it is no longer good law, as is the case with Morrison v. Olsen.

So, if the district court appointed Interim U.S. Attorney has been removed, how could Attorney General Bondi reappoint Alina Habba to ensure the running of the U.S. Attorney's office for New Jersey? In my opinion, Attorney General Bondi could have chosen to reappoint Alina Habba for another 120 days as Interim U.S. Attorney, since her initial appointment was not one to which the Senate had refused to give advice and consent. I do not think it was necessary to withdraw Habba's nomination and appoint her as Acting U.S. Attorney. All that happened to Alina Habba was that the New Jersey Senators refused to allow Alina Habba's nomination to be voted on by the full Senate. If her appointment is voted on and rejected by the Senate or at least by the Senate Judiciary Committee, her term ends immediately. But until and unless that happens 28 U.S.C. § 546(a) allows an interim re-appointment:

Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.

The statute nowhere says that the same person cannot be reappointed for another 120-day term, unless the Senate has refused to advise and consent to their nomination. Refusal to advise and consent requires a vote either in committee or on the floor. Delaying a U.S. Attorney's nomination vote to run out the 120-day clock on their service as Interim U.S. Attorneys is not a "refusal" of "advise and consent."

This situation differs from the unconstitutional appointments of Robert Mueller and Jack Smith to be Special Counsel because there was no statute that created the Office of Special Counsel, which they purported to hold, nor was there a statute that authorized the Attorney General to appoint a Special Counsel when Robert Mueller and Jack Smith were appointed. The Ethics in Government Act of 1978 sunset out of existence in 1999. It was replaced by an Attorney General Order governing appointment of Special Counsel's, which Gary Lawson and I explain is unconstitutional, as Judge Aileen Cannon held in an excellent 92-page opinion. Steven G. Calabresi & Gary Lawson, Why Robert Mueller's Appointment as Special Counsel is Unlawful?, 95 Notre Dame Law Review 87 (2019).

In Alina Habba's case, and in the case of other Interim U.S. Attorneys like her, there is both (1) a statute creating the office of Interim U.S. Attorney and (2) a grant of power to the Attorney General Bondi to appoint Interim U.S. Attorneys, so long as they have not been voted down by the Senate. There was thus no need to withdraw Habba's nomination when she could instead have been appointed to another 120-day term as Interim U.S. Attorney, at least until the Senate voted and refused to advise and consent to her nomination.

Comments

[Martinned2]

That's a lot of words for "Donald Trump can do whatever he likes and whenever anyone else does something Donald Trump doesn't like, that's unconstitutional".

[Kleppe]

European characteristically adds nothing of value. Thanks for that.

[MaddogEngineer]

That's a few words to dismiss someone's reasoned argument without making a coherent counter one.

I have no idea whether Calabresi is correct about no bar to reappointment or not. Lots of people seem to believe otherwise so I'm skeptical of that interpretation. That has no bearing on what the administration has done to restore Habba as interim USA.

[Frank Drackman]

Stick it where the Monkey puts the nuts, Snail Eater!

[Riva]

Being a stranger to our land and ways, I think you misunderstand. So, I'm going to explain it to you as I would to a little child in school child, or Justice Jackson. It is not authority specific to Donald Trump. Donald Trump is the President of the United States and, by virtue of holding that office, he is constitutionally vested with all executive authority and entitled to exercise that authority as he sees fit consistent with the Constitution.

[not guilty]

Which Justice Jackson, Riva? Justice Robert Jackson famously wrote:

The actual art of governing under our Constitution does not, and cannot, conform to judicial definitions of the power of any of its branches based on isolated clauses, or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).

The relevant language of Article II, § 2: "but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments", (emphasis added,) seems pretty difficult to misunderstand.

But then, as Upton Sinclair said, “It is difficult to get a man to understand something, when his salary depends on his not understanding it.”

[LexAquilia]

Do you think you're right and Calabresi is wrong because of this plain and obvious language in the Constitution that he somehow overlooked?

[not guilty]

He didn't overlook it, doofus. He quoted it in the OP.

And yes, I am right and he is wrong.

[Riva]

I'm referring to the diminutive idiot currently sitting on the Court who can't define what a woman is or identify a legal issue, if there's any confusion. Seems like you two have a lot in common.

And you forgot to reference the part in Art. II vesting all exective authority in the President. It's in the first clause of Sec. I of Art. II if that's any help.

[David Nieporent]

The word "all" does not appear in Section I of Article II.

[Riva]

If you know of another executive vesting clause in the Constitution, please don't keep it to yourself. Is it on the back with the other non-existent quasi-vesting clauses?

[not guilty]

Riva, the relevant language of Article II, § 2 has been quoted upthread: "but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

Article II, § 2 vests the power to determine the appropriate manner of appointment of inferior officers in Congress. To the extent of any inconsistency with Article II, § 1, this language of § 2 creates an exception to the language of § 1.

[Riva]

Not Guilty, I quoted the relevant and controlling language upthread. Nothing in the text you repeat divests the president of his executive authority to manage his own branch, or empowers Congress to do the same. There is only one Chief Executive.

[Bruce Hayden]

“The executive power shall be vested in a President of the United States of America.”

I know that you hate Article II, § 1, ¶ 1, when A Republican is President. But even for you, quibbling that that sentence doesn’t mean what it says because it doesn’t include “all” is even ridiculous for you.

And that is where our Constitutional Republic differs from most corporations - where the executive power is, essentially, vested in the board of directors. With the USA, it is vested in the President, and any power of any Executive Branch employees, agencies, departments, etc, is derivative of and delegated from the President.

[David Nieporent]

1. I was responding to Riva's claim that it says "all." That it doesn't say "all" is not quibbling in response to a claim that it does.

2. Moreover, you're begging the question. Even assuming that all executive power is vested in the president, the question of "What does the executive power consist of?" still remains to be addressed.

(For example, wouldn't hiring subordinates ordinarily be an executive power? But under the constitution the president can't hire a single person without congressional authorization and — in the case of officers — senate approval.)

[Greg J]

That's impressive, the way you completely ignored what Calabresi wrote about that exact text.

Did you not read the article, or are you just a lying sack of sh!t?

Could Congress empower SCOTUS to appoint the White House Chief of Staff? If your claim is "yes, that's Constitutional", you are either stupid, or dishonest.

If your answer is "no", then you agree with Calabresi that "but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments" means that judges can appoint THEIR clerks, bailiffs, etc, but not Executive Branch officers

[Riva]

Anticipating that my explanation was not simply enough, I asked ChatGPT to rewrite it for a small child. Hope this helps:

Okay, imagine the President of the United States is like the "boss" of the country. Donald Trump is now one of those bosses, but this idea isn't just about him—it's about any boss of the country. When someone becomes President, they get special powers to make decisions and help run the country, as long as they follow the big rulebook called the Constitution. So, Donald Trump uses his powers as President, just like any other President would.

[David Nieporent]

Okay, imagine the President of the United States is like the "boss" of the country.

I can do that, since I have a pretty good imagination. But he's not, in fact. He's just a hired hand.

[Riva]

I'm sure you do, like all children, even the unpleasant, election deniers like you.

[Malika the Maiz]

He’s not only boss to his cult followers, but daddy, and they’re his good MAGA boys, and in some cases, gals.

[Rossami]

Every boss of every publicly-held company is just a hired hand. So what? They're still the boss, entitled to hire and fire their own subordinates.

[Sarcastr0]

That's a fundamental inversion of something that makes America exceptional - servant leaders with limited powers both in their formal authority and *culturally*.

[LexAquilia]

It's like you don't know the organization you work in even exists. That's nothing like the Administrative State we live in now.

[Malika the Maiz]

Can’t boards put some limits on that?

[Rossami]

Sure, they can. But who, in this analogy, is the Board of Directors? I would argue it's us voters, not Congress. And the only pro-scriptive limits we've put on the "boss" are the ones we encoded into the Consttution. (We can also apply post-scriptive limits by voting the bum out but that's not relevant here.)

[Malika the Maiz]

I don’t disagree, I’m just saying the Constitution might allow Congress to impose limits (or impose them itself). Don’t know about this particular situation mind you.

[Rossami]

Two-thirds consent of the Senate is the only limitation I see imposed in the Constitution (and not even that for vacancies that occur during a recess). Other than that, "[t]he executive Power shall be vested in a President of the United States of America" (emphasis added). I don't see a competing clause anywhere else that lets Congress meddle in executive branch staffing choices.

Well, I suppose they could just start impeaching choices they don't like. Between the intentional vagueness of "high crimes and misdemeanors" and Three Felonies A Day, I'm sure they could find some excuse. That would be a politically risky path, though.

[Voize of Reazon]

The President may appoint an officer without Senate approval only if Congress permits him to, which they can do only if it is an inferior office. If they attach conditions on that permission then he is bound by them.

He can avoid those conditions by using the power the Constitution grants, by making an appointment with Senate approval.

[Bruce Hayden]

Nope. See above. “The executive power shall be vested in a President of the United States of America.” He is not merely a hired hand. Rather, the entirety of Executive Power is vested in him (the President).

[Greg J]

Article II
Section 1
The executive Power shall be vested in a President of the United States of America.

Yep. he's the "hired hand" in whom is vested the ENTIRE "executive Power" of the United States of America

None of it is any place else

[Tallman]

tbf, anyone convicted by the judge-appointed attorney general will appeal that conviction on the grounds SC outlines. Trump/Bondi saved a ton of judicial resources -- both wrt appeals and likely new trials (with their attendant randomness).

Even if Constitutional, the statutory scheme is ill-conceived.

[Sarcastr0]

Pretty sure it's gonna be challenged now as well.

The argument from anticipation of what will happen seems a pretty shaky one, legally.

I agree the statutes right now are not clearly drafted; not sure that's the same as ill-conceived.

[John 4]

"This situation differs from the unconstitutional appointments of Robert Mueller"

Oh god.

[Social Justice is neither]

Do you hate being reminded who exactly is lawless, rogue and constantly breaking norms? Sorry but it's always Democrats.

[Malika the Maiz]

How pathetically partisan does a person have to be to say something like this in a two party system?

[Riva]

How pathetically stupid does a person have to be to believe that criticism of the corrupt acts of one of those parties in a “two party system” itself is inappropriate? Or maybe, how much per stupid response does the troll earn? Is there a quota?

And, technically, there are many parties. You may not have noticed, being a blithering idiot, but this site itself represents Libertarian views. Look it up in whatever idiotic troll AI you use to write (not “say”) your embarrassingly stupid comments.

[jb]

It's just comical when people post stuff like this. Mueller was appointed by Republicans in the first Trump administration.

[Riva]

It's rather comical when people post stuff like this. The Mueller investigation was essentially a byproduct of the Democrats' corrupt weaponization of intelligence against a political opponent. As succinctly expressed in a recent Legal Insurrection piece:

It’s easy to forget what was unfolding in Washington, D.C., during the first two years of Trump’s first term. After Trump fired FBI Director James Comey in May 2017, the bureau’s dubious Crossfire Hurricane investigation morphed into Robert Mueller’s special counsel probe. The legacy media took its cues from the odious Andrew Weissmann — the lead prosecutor on Mueller’s team — and the equally odious Rep. Adam Schiff (D-CA). Russiagate fever had swept the city. Under Weissmann’s direction, strategically timed leaks from the special counsel’s office to the press were a regular occurrence. Meanwhile, Schiff, an obscure congressman who had arrived in Washington in 2001 but was virtually unknown, suddenly became a media star. He appeared on every left-leaning talk show, repeatedly claiming that evidence of Trump’s collusion with Russia to win the 2016 election was “in plain sight.” The Democrats’ propaganda mill was in overdrive...

[jb]

Bad bot. None of that in any way rebuts the fact that Muller was appointed by Republicans in the first Trump administration. Just random junk pattern matching on "Muller" and "Republicans" I guess.

[Riva]

No contemptuous moron. Try reading that again, maybe with some help from your caregivers. Mueller was a byproduct of the corrupt DOJ and FBI hacks actively engaged in exploiting the weaponized intelligence they themselves, along with the Hillary campaign, fabricated. And the hacks actively seeking to undermine the trump administration don't get a pass because you try to attach a "republican" label on them. I guess they can try asserting that in their trials, but it won't play any better there than it does coming from a POS troll here.

[jb]

Rod Rosenstein appointed Mueller. Not only was he a Republican, he was appointed to his position by...Donald Trump.

You can keep saying the word Democrat as many times as you want, but that doesn't changed who decided there should be a Special Counsel or who appointed him. Sorry if that's hard to compute for you, but facts are facts.

[Riva]

The facts as disclosed in multiple sources, including recently declassified files, prove conclusively that democrats manufactured and promoted the Russian collusion fraud, including Obama who was the driving force behind the fraudulent intelligence assessment. That some republicans may have been duped into believing the fraud only provides further proof as to how damaging the democrat corrupt weaponization of intelligence truly was. Of course come republicans in name only may also have been willing participants for their own motives. Neither circumstance excuses their behavior or the detracts from the historic fraud and abuse of power instigated by Democrats.

[David Nieporent]

There was no fraudulent intelligence assessment.

[Heresolong]

Riiiiight. You mean the totally not fraudulent intelligence assessment where the CIA concluded that Trump and Russia had not colluded but the heads of the FBI and CIA came out with a new one based on "secret information" that only they had? Or the one that referenced the Steele Dossier even though multiple analysts and everyone involved knew that it was fake and that the "source" had actually been previously fired as an intel source because he didn't actually know anybody or anything? That totally not fraudulent intelligence assessment? Might want to do a bit more research.

[Riva]

Let's make it even simpler. That some unelected parties you identify as "republican" may have committed wrongs in the illegal Mueller investigation and Russian collusion fraud does not mean that the underlying fraud wasn't engineered and promoted by Democrats, most notably ol' big ears himself. Would pictures help? Maybe putting it in comic book form?

[not guilty]

Uh, Riva, the 115th Congress (January 3, 2017 – January 3, 2019) had Republican majorities in both houses, and Donald Trump was in the White house.

Kvetch all you like. You won't spook the characters off the page of history, nor the pixels off the monitors.

[LoganMankins]

Was wondering when the Calebresi dry humping Trump article was going to be posted

[Sarcastr0]

I swear to God there's a set who wants to ride the strong unitary executive theory right into authoritarianism.

All in the name of the Founders.

A better indictment of this brand of political originalism would be hard to find.

[Frank Drackman]

Some might say a Single Senator holding up hundreds of appointments is "Authoritariansim"
Oh wait, you did say that when it was Senator Tuberville, but when It's Senator Light in the Loafers it's fine.

Frank

[Malika the Maiz]

Some might say a person (or character) who doesn’t know basic English capitalization, punctuation, etc., is a moron.

[Riva]

A better confession of someone who rejects the Constitution and its separation of powers would be hard to find.

[Sarcastr0]

Here you are again not engaging with anything that was said, just posting 'separation of powers' like a talisman.

[Riva]

Have you ever let mind boggling, f'ing ignorance stop you from making comment? The unitary executive theory is a specific interpretation of the separation of powers, focused on how all executive power is vested in the president. If you care to reread your first asinine comment, you might notice that you brought up the topic. Again, I know you're a bastard, but why do you have to be such a stupid bastard? I might sometimes make typos, but your comments evidence profound ignorance on an epic scale for someone making comments a site focused on law and legal policy.

[Malika the Maiz]

“The unitary executive theory is a specific interpretation of the separation of powers, focused on how all executive power is vested in the president.”

Yes, one he said a set wants to ride right into authoritarianism. Bot unresponsive.

[Riva]

And if you’re looking for something below stupid bastard, look no further. To point out the implications that an asinine comment ignorantly represents an attack to constitutional separation of powers is not “unresponsive.” It is simply a response that embarrasses the ignorant clown that posted it.

And of course, we can add one more clown (or is this a shared troll alias? Hard to know with the trollnados here) to the list who is so abysmally stupid as to fail to understand. Even after this comment this response I suspect. Sorry but stupid is permanent.

[Lee Moore]

The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.

This is the interesting bit, IMHO. I think Calabresi gets to the right conclusion, but without digging down as far as is necessary.

What does "the Senate refused to give advice and consent to" mean ? The tragic tale of Merrick Garland (and the tragic tale of Miguel Estrada) illuminate the point. It seems to me that the Senate actually voting "nay" on a nominee constitutes a refusal, but hanging around in procedure and not getting round to an up or down vote does not constitute a refusal. It just constitutes the absence of consent, for the time being. Maybe if Hillary had won, Mitch would have gone ahead and confirmed Garland. There's no reason to believe that would have been impossible under Senate rules. So until it's dead, it's alive.

But when the nomination is returned to the President, unacted upon (eg at the end of a congressional session) - that constitutes a refusal.

So (b) doesn't kick in until the nomination is voted down, or the nomination is returned to the President.

[Voize of Reazon]

I would agree if the text said "failed to give advice and consent", but it doesn't.

[Armchair]

Seems correct in my opinion.

[Voize of Reazon]

Seila Law concerned whether the President could remove executive officers and not whether only he could appoint them.

[JoeFromtheBronx]

The discussion of line drawing here underlines that there is a good degree of reasonable debate that should be left to political determination. This is especially the case when dealing with something that was allowed since the days of Ulysses S. Grant.

As to Robert Jackson's famous speech on prosecutors, let's not only focus on one passing reference.

The overall theme is important too, including when determining the appropriate choice when voting for Emil Bove for a good behavior appointment on the federal bench.

[Voize of Reazon]

there is [...] a statute creating the office of Interim U.S. Attorney

It isn't a separate office, it is an interim appointment to the office of US Attorney for the district. And that is why you can't have a USA and an interim USA in the same district at the same time - there is only one office.

If you believe a USA is an inferior officer then the appointment is valid because Congress can provide for such appointments to be made without Senate confirmation. There is no basis to assert that it can't require confirmation under some circumstances and no confirmation under others.

If on the other hand you believe a USA is a principal officer (you shouldn't) then nobody can make appointments, interim or otherwise, without Senate approval.

[Lee Moore]

I disagree with Calabresi’s theory that Congress can’t allow Article III judges to make appointments of executive branch officials, because there is no such limitation in the text.

So the amusing ping pong of court appointment followed by immediate Presidential dismissal, and so on, seems to accord with the constitutional structure.

[Aubrey LaVentana]

"I disagree with Calabresi’s theory that Congress can’t allow Article III judges to make appointments of executive branch officials, because there is no such limitation in the text."

. . stands the Tenth Amendment on its head. The test is not whether the Constitution forbids a branch of government from taking an act---"absent that prohibition, the act is Constitutional". The test is whether the Constitution gives any branch of government the power to take a specific act.

And unless I read this incorrectly, we're discussion a statute that governs Executive appointments to an office without the Senate having consented, after having been asked for it. If the Legislature wants to fix this problem and remove all doubt, the Legislature can do so by passing or amending the statute.

Call me a quaint provincial curmudgeon if you will, but a problem created by legislation should be resolved by damned legislation. Make them do their jobs. I'd be perfectly fine with a court challenge on this very point to result in the court shrugging and saying "This isn't justiciable, let Congress fix it. And until Congress fixes it, the Executive can obey their best articulable understanding of the law as it stands right now."

[David Nieporent]

The test is whether the Constitution gives any branch of government the power to take a specific act.

And it does. Calabresi just wants to read it to say something else, even though the Supreme Court already said he's wrong. (I mean, not by name; they said it ~150 years ago, before he was born.)

[Aubrey LaVentana]

The Constitution is mute about when the Senate, after the Executive has nominated, neither consents nor rejects the Executive's nominee. It assumes that the Senate will vote up or down, rather than dithering, changing the subject, or following rabbits down holes. Congress is broken.
Legislation allowing an interim appointment without, or infinitely pending, Senate consent doesn't fill the void.

[y81]

It’s amazing how, under Calabresilaw, every statute and every longstanding practice that hinders TRUMP is unconstitutional. What a joke!

[MollyGodiva]

The Constitution says:

"Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, **in the Courts of Law**, or in the Heads of Departments."

5 U.S.C. § 3345 is clearly Constitutional.

[MollyGodiva]

It is amazing how Imperial Presidency fans take the phase "The executive Power shall be vested in a President of the United States of America." to override clauses in the Constitution that are specific about the limitations of the president.

[Frank Drackman]

I was going to say the same about your side takes the phrase "Shall not be Infringed" and then Infringes the (Redacted) out of (Redacted)

[Davy C]

Calabrisi thinks it improper to so vest this appointment power. But the "they" in "as they think proper" refers to Congress and not Calabrisi.

[JoeFromtheBronx]

The full text, which is not intended to refute you:

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

[OpinionsVary]

It really only makes sense if it is talking about officers the president would *otherwise* be appointing. It's right there in the title. 'He shall have the power', followed by 'except sometimes these other people can do it instead'. Trying to imagine a ban on cross branch appointments is incompatible with the text. Maybe you an make a case that subsequent amendments create some limitations but the constitution as initially ratified clearly allows it.

[Armchair]

Calabresi discusses this. His objection is that that phrasing is meant to be intra-branch only. Not between branches.

There is a slight point, in that it can reach some fairly odd situations. Could Congress, for example, say that the district court judge in Alaska now has the sole authority to appoint the deputy head of the state department?

[OpinionsVary]

Surely that's just and example of - yes, Congress can do stupid things if it wants.

[Armchair]

"yes, Congress can do stupid things if it wants."

Ehh... See, if people see how the Constitution is written (in plain speech), and it leads to a result considered absurd, generally speaking, people think the writers of the Constitution meant something slightly different.

To give an example, the second amendment reads ""A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed"

"shall not be infringed." Seems pretty straightforward. No weapons restrictions. Period. Jo Bob can own a cannon. Or a nuke. Can't make it illegal. But, well...that starts to sound absurd. So, the courts redefine what the writers really meant. They "really" meant weapons in common use by the people.

Likewise, if an interpretation of a provision of the Constitution leads to a potentially absurd result...like the district court judge in Alaska being the sole authority to nominate the assistant secretary of state. Well...sometimes it gets redefined.

[windycityattorney]

But the circuit judges are in a good position to know who would be a capable u.s. attorney. Perhaps in the best position if the choices are among those attorneys who have practiced before them; which they usually are. State courts do similar in some situations. In my state; court's can fill vacancies for the local d.a. [an elected position] and appoint head public defenders -- who technically are employed by the counties they serve in.

[Rossami]

If the US Attorney position is an "inferior office", then consent from the Senate is not needed at all. If, however, the USA is a principle officer needing confirmation, then no, that statute is not constitutional.

Note that as Voize said above, there is and can be no separate "office of the Interim USA" - it's the interim holder of the office of the USA. Even the 'Congress can do stupid stuff' principle has limits.

[OpinionsVary]

If there is no inferior USA role for interim/acting holders, then Alina Habba was serving unconstitutionally in the first place. The whole idea with letting people serve in interim roles prior to senate confirmation (as Habba was doing) relies on the fact for these inferior officer 'shadow' roles to exist.

[Armchair]

"If the US Attorney position is an "inferior office", then consent from the Senate is not needed at all."

Unless the Senate says it is needed.

[thesafesurfer]

The judicial branch is broken.

[OpinionsVary]

The judicial branch is excising the power granted to it by statue as clearly allowed by any textual reading of the appointment clause. To read otherwise is to invent imaginary words, which orginalists are meant to be against.

[Michael P]

What, like how courts have invented the various limitations on the freedoms of speech and press that are not mentioned in the text of the First Amendment?

[Aubrey LaVentana]

the legislature is broken too.

[Doug Heffernan]

Whatever is the correct interpretation of the constitution/law, and whether it was followed or not, at least we're fortunate that such a well qualified person (Alina Habba) landed in the position, for however long.

And that the first assistant, Desiree Leigh Grace, who apparently was some sort of unqualified political operative, was removed.

It seems that the system works.

[David Nieporent]

This is dangerous, in that MAGA commenters are exceedingly likely to fail to understand your irony.

[LexAquilia]

Democrat DEI hires have no business being in a real organization exercising real authority.

We see with our very own eyes how skin-color/lifestyle-choice based hiring preferences lead to disaster, low quality, lack of trust and in many cases lives being lost.

[Jazzizhep]

See DN’s comment above. It is sarcasm. Switch the names and you have Doug’s meaning.

[SRG2]

but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

This is as decisive, categorical and clear as one could possibly want.

[Glaucomatose]

No, no - it would be absolutely absurd, Alice-in-Wonderlandish, even, to read that as written, and not as Steven Calabresi wishes it were written instead. Clearly that part of the Constitution is unconstitutional, because the Supreme Court held in 2025 that the Constitution requires the President to have absolute authority on appointments.

[Rossami]

Is the USA an inferior officer? If so, then why are we bothering with the Senate confirmations? If not, then that clause doesn't apply.

[OpinionsVary]

Acting/Interim U.S. Attorneys are inferior officers, full USAs are not. That's why Habba could also serve her first 120 day 'term' while the Senate considered (in practice ignored) her nomination.

[Armchair]

Full USAs are considered inferior officers. Otherwise, this entire argument falls flat.

[Voize of Reazon]

then why are we bothering with the Senate confirmations?

Because 28 U.S.C. §541, the statute that creates the offices of US Attorney, requires confirmation to make a regular 4-year appointment.

Meanwhile §546 provides an alternate path where the AG can fill a vacancy in the office for 120 days.

Inferior officers can be appointed without confirmation if Congress says so, but it doesn't have to say so.

[TheAmazingEmu]

Because Congress can vest the appointment of inferior officers as they think proper, including by requiring Senate approval.

[Dr. Ed 2]

Before the Bmeing 707, a cross-country flight had at least 12 hours of actual flight time and multiple stops to refuel. A train would take 3-4 days with a change in Chicago. A century ago, with stops for water, it would take a week - or more.

My take is that the judicial appointment was for when they needed someone RIGHT NOW and couldnt wait a week. Back then, sudden fatal heart attacks and if your USA is dead and you need something signed....

[SRG2]

1. Nonetheless this explanation did not make it into the Constitution.

2. The same argument applies to other appointments, but I doubt you'd deny Trump his interim or acting appointments.

[TheAmazingEmu]

Honestly, I think the best explanation is that the distinction between officers and "mere employees" wasn't contemplated by the framers. They basically assumed there would be a department head confirmed by the Senate and then all the people who worked for the department head. They didn't want to waste all their time dealing with every single person who worked in that department, so they let other people decide how they should get their jobs. The most straight forward way would be to have the department head hire them, but, sometimes, they might prefer some other mechanism.

It's clearly not just an issue of filling job positions when Congress isn't in session. That's what a recess appointment is for.

[Mr. Bumble]

Judges, is there anything they can't do?

[SRG2]

Yes. But you're whining about them doing something the Constitution and legislation allow them to do.,

[Mr. Bumble]

I believe the question is whether the legislation is Constitutional.
Hardly whining.

[SRG2]

You hit the "Submit" button, right? So you're whining.

[Mr. Bumble]

You hit the submit button so your trolling, right?
Fucking dipwad.

[Don Nico]

"...and you need something signed...."
G_d saw that and created the Autopen, full of Power and Authority.

[Bruce Hayden]

Keep in mind the power of a USA. They have the discretion to bring suit (civil or criminal). This was, essentially, a power grab by the district court judges, so that, essentially, they were the ones making those decision, taking that power away from the President. We saw this a bit during Trump’s first term when a district court judge was refusing to dismiss charges against (I believe) LTG Flynn, despite a motion by the DOJ to do just that.

[David Nieporent]

This was, essentially, a power grab by the district court judges,

That comment is, essentially, a legally illiterate one. Congress gave them the power; they didn't "grab" it. And the constitution expressly authorizes Congress to do so.

[TheAmazingEmu]

I'm shocked that a post from a Professor can boldly declare a statute unconstitutional without any discussion of the relevant constitutional provision:
Article II, § 2
"the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
Giving the courts the power to appoint inferior officers is clearly spelled out in the Constitution. Rather than being clearly unconstitutional, it would seem to be clearly constitutional.