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The Statute Allowing Judges to Appoint Interim U.S. Attorneys is Constitutional
Steve Calabresi's argument that judges cannot make such interim appointments is ultimately unpersuasive, as the Appointments Clause specifically allows Congress to vest such power in the Judiciary.
Leading constitutional law scholar and VC co-blogger Steve Calabresi has posted an interesting analysis of the Attorney General's authority to appoint interim U.S. Attorneys—and of federal judges' authority to step in and make an appointment after the expiration of an interim term. Calabresi argues that the part of the federal statute authorizing judicial appointments (28 U.S.C. § 546(d)) is unconstitutional. I often find Calabresi's analysis of constitutional issues powerful. On this particular issue, however, I disagree. Even proceeding on the originalist and textualist premises Calabresi relies on, his argument is unpersuasive.
Calabresi's argument essentially requires ignoring the text of the Constitution's Appointments Clause, the history and tradition of judicial appointments of interim U.S. Attorneys, and important Supreme Court precedents. Against this backdrop of text, history, and tradition, § 546(d) is constitutional.
In today's post, I focus on this constitutional issue. I hope to follow-up tomorrow with another post on how the statute operates in practice. Calabresi is seemingly correct that, by making repeated interim appointments, a determined Executive can block the ability of judges to make appointments. Thus, even if the statute's judicial appointment authority is constitutional, it may ultimately end up rarely being used.
As the springboard for analyzing the constitutionality of the judicial appointment provision, Calabresi analyzes the recent controversy over Alina Habba's (recently expired)120-day term as Interim U.S. Attorney for the District of New Jersey. Ms. Habba had been acting as the Interim U.S. Attorney while her nomination to become the U.S. Attorney was pending before the Senate. As Ms. Habba's interim term was drawing to a close, the district judges for the District of Jersey entered a terse order declining to extend it. Instead, citing their authority under § 546(d), the judges appointed Ms. Habba's First Assistant (Desiree Leigh Grace) to the interim position. The Trump Administration responded by the President withdrawing Ms. Habba's nomination. And then Attorney General Bondi appointed her to be First Assistant in that U.S. Attorney's Office and also Acting U.S. Attorney for the District for the next 210 days pursuant to the Federal Vacancies Reform Act of 1998, 5 U.S.C. §§ 3345 et seq. Writing on X, Attorney General Bondi explained that "[t]his Department of Justice does not tolerate rogue judges—especially when they threaten the President's core Article II powers." The Attorney General also removed the First Assistant (Ms. Grace) from the interim U.S. Attorney position.
The question of judicial appointments is an important issue, not only in the U.S. Attorney context but also in other areas. To focus the discussion, like Calabresi, I will discuss the Attorney General's appointment authority under § 546 rather than the Federal Vacancies Reform Act, which is apparently a "fallback" position of the Trump Administration. On § 546, Calabresi defends the Attorney General's position by arguing that the part of the statute that the New Jersey judges relied upon to make their appointment is unconstitutional. Here's the text in question:
If an appointment expires under subsection (c)(2) [i.e., under an interim appointment by the Attorney General], the district court for such district may appoint a United States attorney to serve until the vacancy is filled.
28 U.S.C. § 546(d).
Calabresi concedes that versions of this provision "have been in the U.S Code since the Civil War," but notes "they have rarely been invoked" by judges. Nonetheless, the concession of long-standing historical foundation for judicial appointments should give an originalist pause. Calabresi's main argument is that the judicial appointment provision is now unconstitutional under two recent Supreme Court decisions: Seila Law (2020) and Trump v. Wilcox (2025). Under these decisions, contends Calabresi, the power to prosecute is a core "executive Power" under Article II, Section 1. And, accordingly, under these recent decisions, only the Attorney General (acting on behalf of the President) can appoint Interim U.S. Attorneys. In my view, Calabresi conclusion overreads these recent decisions and incorrectly downplays other, controlling Supreme Court precedents.
It will be useful to set the stage for the issue with some historical background about the prosecution power. Here I draw on my recent article about the Crime Victims' Rights Movement, which explains that in American history the power to prosecute long resided not in the Executive but in private hands. My article observes that, at the time the Constitution was drafted, the dominant mode of state criminal prosecution was private prosecution—that is, prosecution by (for example) victims of crime. When crafting the federal Constitution, the Framers left state criminal proceedings essentially unregulated, meaning that state prosecutions were often initiated by victims rather than government actors.
But in the federal system, it is unclear what the Framer's intended for the prosecution power. So far as can be determined, the Framers never discussed prosecution in connection with federal executive power at the Convention. (See Cassell, supra, at 405). Moreover, most state constitutions at the time of the Framing did not mention, let alone classify, the prosecutorial function. As Professor Stephanie A.J. Dangel has reported, when the Constitution was drafted, five state constitutions included the office of attorney general, but under the judicial articles.
Ultimately, the Framers produced the Constitution with its Appointments Clause, which allows Congress to vest appointment of "inferior Officers" in (among other places) "the Courts of Law":
[The President] … 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.
U.S Const., Art. II, Section 2 (emphasis added). In his post, Calabresi asserts that interim U.S. Attorneys are "inferior Officers." And given their limited remit (holding the Office of U.S. Attorney only temporarily) that seems plausible. So I won't explore the issue here. For further discussion, the interested reader should check out Calabresi's (and Gary Lawson's) strong article on the unconstitutionality of Robert Mueller's special counsel appointment, along with Josh Blackman's and Seth Tillman's extensive analysis of related topics.
Treating interim U.S. Attorneys as inferior officers, Calabresi maintains that it "strains credulity" to read the Appointments Clause as allowing Congress to set procedures for "cross-branch appointments." But nothing in the Appointments Clause's text supports that constricted reading. To the contrary, the phrase broadly allows Congress to vest the power "in the President alone" or, alternatively, "in the Courts of Law"—with the choice being made as Congress may "think proper." And Congress is allowed to make its own, proper choice about where to vest the appointment power for "such" inferior officers—that is, officers who include Executive Branch officers.
Moreover, as the Supreme Court explained in Morrison v. Olson, at the Constitutional Convention, "there was little or no debate on the question whether the Clause empowers Congress to provide for interbranch appointments, and there is nothing to suggest that the Framers intended to prevent Congress from having that power." Morrison v. Olson, 487 U.S. 654, 675 (1988). The seven Justices in the the Morrison majority all agreed with this view; the sole dissent, from Justice Scalia, did not challenge it.
Turning next to the office of the U.S. Attorney, in the Judiciary Act of 1789, Congress established a criminal justice system for the small minority of criminal cases handled by the federal system. The Act assigned to the President the power to appoint the Attorney General. In addition, the Act also established a system of federal district attorneys for each of the thirteen judicial districts, with duties including prosecuting in these districts all federal crimes. But while the federal government adopted a public system of prosecution far earlier than many of the state and local governments, nonetheless private citizens continued to be involved even in the federal process.
Professor Dangel explains that, despite the absence of private prosecution in the federal system, private participation continued to some degree. In the early Federal period, private citizens could apparently directly initiate federal prosecutions on their own. Indeed, in a 1794 letter, Attorney General Bradford expressed the view that
[I]f the party injured is advised or believes that the federal courts are competent to sustain the prosecution, I conceive he ought not to be concluded by my opinion or that of the district attorney. If he desires it, he ought to have access to the grand jury with his witnesses; and if the grand jury will take it upon themselves to present the offense in that court, it will be the duty of the district attorney to reduce the presentment into form, and the point in controversy will thus be put in a train for judicial determination.
In addition, Congress bolstered enforcement of federal criminal statutes with private qui tam actions. Courts effectively treated qui tam actions as criminal proceedings.
To be sure, as a matter of practice, federal criminal prosecutions quickly became synonymous with public prosecutions. But the functional reason a right of private prosecution failed to develop in the federal system stems from the happenstance of the limited kinds of federal crimes at the time. As Professor Dangel has cogently explained, "the Supreme Court refused to recognize federal common law crimes which might have given rise to private prosecution." Moreover, "federal criminal statutes during this period dealt with crimes against the Federal Government qua Federal Government, and thus, public officials prosecuted these public crimes." Thus, Calabresi's initial starting premise—that prosecution is an "exclusively executive power"—rests on shakier foundations than is commonly recognized.
The Judiciary Act of 1789 authorized the President to make the appointment of what we now call U.S. Attorneys, subject to advice and consent by the Senate. But could that appointment power, to some degree, be vested in the Judiciary? This particular cross-branch appointment issue has not been litigated before the Supreme Court. But, in other contexts, the Court has examined cross-branch appointments—generally approving them. In Ex parte Siebold (1879), the Court concluded that Congress could vest in the circuit courts the appointment of supervisors of elections. Siebold noted that an earlier case, In re Hennen (1839), had stated that the issue before it (involving a court clerk) could be traced back to an appointment, which was "intended to be exercised by the department of the government to which the officer to be appointed most appropriately belonged." Calabresi cites this statement from Hennen. But Hennen did not provide any analysis of the constitutional issues involved. And, as Siebold later explained, Hennen's observation "was not intended to define the constitutional power of Congress in this regard, but rather to express the law or rule by which it should be governed." 100 U.S. at 398.
Seibold also noted that a flat constitutional rule barring cross-department appointments could lead to endless wrangling over which department was the appropriate one. It was "no doubt usual and proper to vest the appointment of inferior officers in that department of the government, executive or judicial, or in that particular executive department to which the duties of such officers appertain. But there is no absolute requirement to this effect in the Constitution; and, if there were, it would be difficult in many cases to determine to which department an office properly belonged." Id. at 397.
Calabresi acknowledges that Siebold "demoted" Hennen's dicta to a mere statutory observation, while expressing his personal view that "the Supreme Court should re-elevate Hennen to be the lead case on this question." But Calabresi's view implicitly concedes both that Siebold is controlling law today—and that it has been the law in this country for more than 140 years.
Calabresi further concedes that, consistent with Siebold, various forms of authorization for judicial appointment of Interim U.S. Attorneys have existed since the Civil War. See, e.g., Act of March 3, 1863, ch. 93, § 2, 12 Stat. 7687(1863). In 1966, that judicial appointment authority was recodified in 28 U.S.C. § 546:
The district court for a district in which the office of United States attorney is vacant may appoint a United States attorney to serve until the vacancy is filled.
Interestingly, one of the most prominent examples of the exercise of this power was in Utah—and indirectly involved my school (the University of Utah College of Law). In 1974, a vacancy existed for the U.S. Attorney's Office for the District of Utah. The presiding district court judge for the District of Utah (Judge Willis Ritter) had previously been a professor at the University of Utah College of Law. And using his recognized statutory power, Judge Ritter appointed another professor from Utah's College of Law—my former colleague Bill Lockhart—to act as interim U.S. Attorney. (Sadly, Lockhart passed away in 2024.) Lockhart served in the interim position for six months. There, he was responsible for administering President Ford's Clemency Program for Viet Nam draft evaders in Utah. Lockhart granted amnesty to all Utah evaders, supported by a careful memorandum to the Justice Department emphasizing the severe inconsistencies, vagueness and prejudicial delay inherent in prior prosecution policies in those cases.
Judge Ritter's tenure in Utah was marked with controversy. (The tale is well told by Patricia Cowley and Parker Nielson in Thunder Over Zion: The Life and Times of Child Judge Willis W. Ritter (2006).) And Ritter's controversial appointment of Lockhart appears to have served (at least in part) of the basis for Congress to amend the statute governing judicial appointments of interim U.S. Attorneys.
In 1986, in response to a request by the Attorney General that its office be vested with authority to appoint interim United States Attorneys, Congress enacted (former) 28 U.S.C. § 546(d). Under this statute, the Attorney General was authorized to appoint an interim United States Attorney for 120 days and, if the Senate did not confirm a new United States Attorney during that time, the district court was then authorized to appoint an interim United States Attorney to serve until a permanent replacement was confirmed. As a House Report later described things, "By retaining a role for the district court in the selection of an interim United States Attorney, former section 546(d) allowed the Judicial Branch to act as a check on Executive power. In practice, if a vacancy was expected, the Attorney General would typically solicit the opinion of the chief judge of the relevant district regarding possible temporary appointments." See House Rep. 110-58.
It appears that the Reagan Administration did not contest the constitutionality of § 546(d)'s judicial appointment provision. Perhaps the reason is that, if the Administration had litigated the issue directly, it would have lost. In Morrison v. Olson, 487 U.S. 654 (1988), the Court disagreed with the view "that there is an inherent incongruity about a court having the power to appoint prosecutorial officers." Id. at 676 "Indeed," the Court held, "in light of judicial experience with prosecutors in criminal cases, it could be said that courts are especially well qualified to appoint prosecutors." Id. at 676 n.13. The Supreme Court recounted that "courts may appoint private attorneys to act as prosecutor for judicial contempt judgments"; that courts may appoint United States commissioners with prosecutorial powers; that courts may appoint federal marshals, who are executive officers; that courts may appoint interim United States Attorneys who, inter alia, prosecute criminal cases; and that "Congress itself has vested the power to make these interim appointments in the district courts." See Morrison, 487 U.S. at 676–77 (citing 28 U.S.C. § 546(d)).
Calabresi seems to acknowledge that Morrison specifically validated § 546(d). But he argues that Morrison is "no longer good law as to … its Appointments Clause holding," because the holding was not followed in either Edmond v. United States, 520 U.S. 651 (1997) or Free Enterprise Fund v. PCAOB, 561 U.S. 477 (2010)." But neither of those two cases provides real support for Calabresi's position.
In Edmond, the Supreme Court rejected an Appointments Clause challenge to the Secretary of Transportation appointing Coast Guard judges, concluding that a statute authorized the appointment and that the judges were "inferior Officers" within the meaning of the Appointments Clause. The Court specifically cited Morrison as part of its analysis. Apart from the "inferior Officer" issue, the petitioners in the case did not raise any other Appointments Clause issues—and, accordingly, the Court did not address Congress's authority.
And in Free Enterprise Fund v. PCAOB (2010), the Supreme Court considered whether the Take Care Clause of the Constitution permitted a principal officer to be given "multilevel protection from removal" by the President. Here again, the Appointments Clause was not the main issue—the President's removal power of an already-appointed official was. And while the Court struck down the problematic removal constraints, the Court rejected an Appointments Clause challenge to the SEC's collective appointment of board members. To be sure, the fact pattern presented in the case involved an appointment by the SEC—not courts of law. But the Court even noted that the "Appointments Clause necessarily contemplates collective appointments by the 'Courts of Law,'" Art. II, § 2, cl. 2, without casting any doubt on the practice.
Finally, Calabresi cites two recent Supreme Court decisions that, in his view, render § 546(d) unconstitutional. The first is Seila Law, 591 U.S. 197 (2020), a decision involving a for-cause restriction on the President's power to remove the director of the Consumer Financial Protection Bureau (CFPB). But this a curious citation for an Appointments Clause argument, as the majority does not cite (much less discuss) Congress's power to vest appointment power in courts. Calabresi argues that § 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." But Seila Law analyzes the President's removal power over the director of a purportedly independent Executive Branch agency. Thus, it sheds little light on issues surrounding what appointment power that might be extended to the judiciary. Indeed, at several points Seila Law cites Morrison—a decision clearly supporting § 546(d)'s constitutionality. And one key fact in Seila Law was that the CFPB's structure was "almost wholly precedented"—in contrast to judicial appointment power for interim U.S. Attorneys dating back to the Civil War.
The second case Calabresi cites—Trump v. Wilcox (May 22, 2025)—is just a recent "shadow docket" order only four paragraphs long, granting a stay of a D.C. district court order enjoining the President from removing members of two agencies (the NLRB and MSPB). The focus of the Court's short order was (as in Seila Law) a restraint on the President's removal power. Here again, this authority seems of limited relevance, particularly given Supreme Court's more direct statement in Morrison approving Congress placing appointment power in the judiciary.
While the cases that Calabresi cites say little about judicial appointment of prosecutors, the Supreme Court has decided several cases on this issue, decisions allowing judicial appointments. The Morrison case is a clear example, but others exist as well. In the context of contempt proceedings, the Supreme Court has explained that "it is long settled that courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt." Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793 (1987) (emphasis added); see also, e.g., United States v. Donziger, 38 F.4th at 304 (upholding judicial appointment of a special prosecutor). The courts also have appointed private attorneys to defend criminal judgments, even when the Justice Department has declined to do so. For example, in United States v. Dickerson (2000), Chief Justice Rehnquist appointed me to defend the Fourth Circuit's decision limiting the scope of Miranda, even though the Justice Department prosecutors were arguing the contrary position for the Executive Branch.
So, to sum up, for Calabresi's argument that § 546(d)'s judicial appointment provision is unconstitutional to work, the Supreme Court would have to:
- read an atextual limit against cross-branch appointments into Article II, section 2, overruling a 140-year-old precedent (Seibold);
- overrule Morrison v. Olson, which directly and favorably cited section 546(d); and
- overrule Young v. U.S. ex rel. Vuitton et Fils S.A., which allowed judicial appointment of special prosecutors.
To me, overturning all these precedents seems unlikely (not to mention potentially unwise). Under existing law, § 546(d) is clearly constitutional.
But let's assume for a moment that Calabresi is correct that § 546(d) is, in fact, unconstitutional. Then what happens? Immediately a severability question would arise, as 546(d)'s judicial appointment sub-section is adjacent, of course, to the earlier sub-sections 546(a), (b), and (c). Subsections 546(a) through (c) authorize the Attorney General to make interim appointments. If the Supreme Court were to strike down § 546(d), it would likely also have to strike down the statute's other related provisions as not severable from each other—potentially depriving the Attorney General of any authority to make interim U.S. Attorney appointments.
To understand the severability issue, it is necessary to lay out the statute's history a bit more. Interestingly, in 2006, the position that Calabresi argues for—complete Justice Department control over interim U.S. Attorneys for an unlimited period of time—was adopted in the PATRIOT Act. See USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, tit. V, Sec. 502, 120 Stat. 246 (2006). But shortly thereafter, controversy arose about how certain U.S. Attorney's had been removed from their offices. And, the next year (2007), Congress responded by enacting legislation—sometimes identified as the "Preserving U.S. Attorney Independence Act"—which went back to pre-existing law. The legislation restored the 120-day limit and judicial appointment provision that remain in the law today.
This congressional action interweaving the various provisions means that, if the Court were to strike down § 546(d), it would likely need to also strike down the statute's other subsections. After finding a part of a statute unconstitutional, under standard severability analysis, the Court "cannot rewrite a statute and give it an effect altogether different from that sought by the measure viewed as a whole." Murphy v. Nat'l Collegiate Athletic Ass'n, 584 U.S. 453, 481 (2018). Thus, a ruling invalidating the interim judicial appointment provision would seemingly necessitate invalidating the Attorney General's appointment power as well. This result does not appear to achieve the goal of broader Executive power that Calabresi seems to be seeking.
Starting from Calabresi's premise that these restrictions on Executive power are undesirable, a stronger argument is not to question the statute's constitutionality but rather to argue (as Calabresi ultimately does) that the Attorney General remains free to make successive appointments for multiple 120-day terms. In a separate post tomorrow, I plan to turn to these issues surrounding how the statute's judicial appointment provision. The statute, while constitutional, might nonetheless be essentially ineffective.
