The Volokh Conspiracy
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The Defense Challenge to Alina Habba's Appointment is Weak
A defendant has challenged Acting New Jersey U.S. Attorney Alina Habba's appointment under the Federal Vacancies Reform Act, but he has no real case under the statute's plain language.
Previously Steve Calabresi and I have blogged about how Alina Habba's appointment as Acting U.S. Attorney for the District of Jersey is valid under the Federal Vacancies Reform Act (FVRA). Calabresi's initial post argued that New Jersey judges lacked constitutional power to displace Habba by appointing an interim replacement. But while I disputed that constitutional conclusion, I ultimately reached the same position as Calabresi under the relevant statutes. I concluded that, under 28 U.S.C. § 546 and the FVRA, Habba was appropriately serving as the Acting U.S. Attorney. In my last post, I explained that the Justice Department had made a powerful defense of Habba's appointment under the FVRA. Earlier today, the defendant challenging Habba's appointment filed a reply brief. But that brief fails to engage on the main issues surrounding the FVRA. It appears that the defendant's position is weak and should be swiftly be rejected.
The timeline is important here. To recap the (essentially undisputed) facts, on March 27, 2025, the Attorney General appointed Ms. Habba interim United States Attorney for the District of New Jersey pursuant § 546. (To make his case seem stronger than it really is, the defendant's brief claims that the Ms. Habba was appointed three days earlier, on March 24—citing a CBS news article. But the Justice Department's brief includes as an exhibit the actual appointment order, which is dated March 27, 2025.) Section 546 explicitly limits such interim appointments to a maximum period of 120 days. 5 U.S.C. § 3346(a)(1). Given an appointment of 120-days, Habba's interim appointment would have expired on on Saturday, July 26.
On June 30, 2025, President Trump formally nominated Ms. Habba for the permanent position of United States Attorney for the District of New Jersey and submitted her nomination to the Senate. On July 24, 2025, before the Senate had acted, the President withdrew Habba's nomination. That same day—July 24, two days before her interim appointment expired—Habba resigned her interim position as United States Attorney. The Attorney General then immediately appointed her as a Special Attorney under 28 U.S.C. § 515, which appointment Ms. Habba accepted. Exercising her authority under 28 U.S.C. §§ 509, 510, 515 and 542, among other provisions, the Attorney General also designated Ms. Habba as the First Assistant in New Jersey, effective upon her resignation as the interim United States Attorney. All of this occurred on Thursday, July 24, two days before the 120-day limit period in § 546(c)(2) expired at 12:00 a.m., Saturday, July 26. As a result of her holding the position of First Assistant U.S. Attorney position in New Jersey, by operation of law, Habba then became the Acting United States Attorney under the FVRA, 5 U.S.C. § 3345(a)(1).
In addition, on Saturday, July 26, a senior Department of Justice official notified the former First Assistant that the President would have removed her from the position of United States Attorney if her judicial appointment to that office had somehow become effective. The notification indicated that, in taking that step, the President was exercising his authority under Article II of the Constitution and 28 U.S.C. § 541(c). The former vests "the executive power in" the President; the latter provides that "each United States Attorney is subject to removal by the President."
Against this backdrop, it seems hard to see the argument that Habba is not currently and validly the U.S. Attorney for the District of New Jersey. The defendant's argument turns on a single phrase in the FVRA, which he does not bother to quote in his brief. Instead, the defendant represents that the FVRA "explicitly prohibits individuals whose nominations have been submitted to the Senate from serving in an acting capacity for the same office, regardless of subsequent withdrawal of the nomination. 5 U.S.C. § 3345(b)(1)." But let's look at the text of the statute that the defendant fails to quote.
The statute provides that an otherwise-qualified individual cannot serve as an Acting U.S. under the FVRA if:
(A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person—
…
(ii) served in the position of first assistant to the office of such officer for less than 90 days; and
(B) the President submits a nomination of such person to the Senate for appointment to such office.
5 U.S.C. § 3345(b)(1)(A)–(B) (emphasis added).
To be sure, Habba had been the first assistant for less than 90 days. So her eligibility to serve devolves to the last phrase highlighted above, related to a Presidential nomination.
At the time Habba became the Acting U.S. Attorney, the President had previously withdrawn her nomination. So the statutory question becomes whether the highlighted phrase above should be read as creating a perpetual disability for a person whose nomination was submitted to the position from becoming Acting U.S. Attorney—i.e., should be read as if it were written "the President has submitted a nomination of such person …."—or read as creating a disability for a person whose nomination is pending at the time—i.e., should be read as if it were written "the President is currently submitting a nomination of such person …."
As between these two alternative readings, the later reading (which affirms Habba's appointment) seems like the obvious one. As I explained in my earlier post, the statute's plain language does not create a disability after the President "has submitted" a nomination in the past. Instead, the statute uses the present tense: a disability exists when the President "submits a nomination." Under standard, recommended principles of legislative drafting, the present tense is used "to express all facts and conditions required to be concurrent with the operation of the legal action," as Bryan Garner explains in his excellent treatise, Garner's Dictionary of Legal Usage 536 (3d edition 2011) (emphasis added). After the President withdrew Habba's nomination—i.e., was no longer submitting her nomination—the condition of her nomination being submitted to the Senate was no longer concurrent with her becoming the Acting U.S. Attorney.
The Justice Department has made the same argument, as I recounted earlier. Here's the Department's argument:
The purpose of subsection (b)(1) is to prevent the President from circumventing the Senate's advice-and-consent function by installing a pending nominee for an office on an acting basis before the Senate can act on the nomination. See NLRB v. SW General, Inc., 580 U.S. 288, 295–96 (2017) (tracing history of provision). Accordingly, "if a first assistant is serving as an acting officer under [subsection (a)(1)], he must cease that service if the President nominates him to fill the vacant [Presidentially-appointed, Senate confirmed] office," or else withdraw from nomination. Id. at 301; see Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550, 558 (9th Cir. 2016) ("Subsection (b)(1) thus precludes someone from continuing to serve as an acting officer after being nominated to the permanent position, unless he or she had been the first assistant for ninety days of the prior year.").
Subsection (b)(1) therefore presupposes a current nomination to an office that is pending before the Senate. Nothing in the FVRA, however, suggests that the mere fact of a past nomination for an office—withdrawn by the President and never considered or acted upon by the Senate—forever bars an individual from serving in that capacity on an acting basis. The statute precludes a person from serving as an acting officer once "the President submits a nomination of such person to the Senate for appointment to such office," 5 U.S.C. 3345(b)(1)(B) (emphasis added); it does not say that the person is barred from such service if the President ever submitted a nomination in the past, or continues to be barred once a nomination is withdrawn. See, e.g., Dole Food Co. v. Patrickson, 538 U.S. 468, 478 (2003) (explaining that a statutory provision "expressed in the present tense" requires consideration of status at the time of the regulated action, not before); Nichols v. United States, 578 U.S. 104, 110 (2016) (same). Indeed, a lifetime ban of that sort would have no logical relationship to the distinct separation-of-powers problem that Congress sought to address in subsection (b)(1): Congress's desire to protect its ability to consider and act upon a pending nomination for an office can hardly be served if no nomination is pending.
In my earlier post, I explained my view that the Department's argument was "powerful." So what does the defendant now say in reply to the Department? Nothing. The defendant's entire reply brief is devoted to teasing out the implications of what happens if Habba were to be in her position improperly. Indeed, nowhere in his reply does the defendant even quote the FVRA's "submits a nomination" language, much less explain why the Department's straightforward interpretation is somehow unreasonable.
Against this backdrop, I expect the defendant's argument will be swiftly rejected. Perhaps his motion has had its desired effect, of attracting headlines about how Habba's appointment has been challenged as unconstitutional and diverting attention attention away from whether the defendant is guilty of the drug dealing crime alleged against him. But the bottom line is that the defendant is asking a court to bar his prosecution under a statutory provision he does not even quote, much less plausibly interpret.
The defendant does refer back to the New Jersey's judges' effort to appoint a person besides Habba as the interim U.S. Attorney. But that argument founders on the fact that judicial authority to appoint an interim U.S. Attorney only exists after the expiration of the 120-day term. Indeed, the New Jersey's judge's order provided that it became effective "upon the expiration of 120 days after appointment by the Attorney General of the Interim U.S, Attorney, Alina Habba." As the chronology recounted above makes clear, there was no expiration of the 120 days. Habba resigned two days before. And even if the judges had somehow effected an appointment of a person besides Habba, the relevant statutes make clear that the President (acting through his Attorney General) can remove that person. Title 28 U.S.C. § 541 specifically provides that "[e]ach United States Attorney is subject to removal by the President." 28 U.S.C. § 541(c). Here again, the defendant does not even cite this provision, much less explain why the President is somehow unable to use it to effectuate his choice to be U.S. Attorney.
To be sure, one can debate whether Habba is well qualified to assume the important position of the U.S. Attorney for the District of Jersey. I take no position on the merits of that issue. And one can also find this entire appointment process to be arcane and hyper-technical--even a "loophole." Perhaps so. But the bottom line is that the President (acting through his Attorney General) has put in place (at least temporarily) an Acting U.S. Attorney that he has confidence in to execute his policies. That seems like the sensible outcome.
