The Volokh Conspiracy
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The Third Circuit's Curious Opinion on the "De Facto" U.S. Attorney for the District of New Jersey
The Circuit's decision appears to invite the workaround of dividing responsibilities between two persons in the U.S. Attorney's Office, who could then each exercise half of that Office's powers.
Today the U.S. Court of Appeals for the Third Circuit affirmed a district court ruling that Alina Habba is disqualified from serving as the acting U.S. Attorney for the District of New Jersey. The ruling is a setback for the Trump Administration's efforts to install its own leaders in U.S. Attorneys Offices in New Jersey and elsewhere. I have my doubts about the merits of the decision, on statutory construction grounds that I have previously blogged about here and here. (Co-blogger Steven Calabresi has also highlighted constitutional concerns that cast doubt on the underpinnings of the Circuit's decision). But rather than dive into those details, it may be more important to highlight a curious limitation to the Third Circuit's ruling. In its ruling's penultimate paragraph, the Circuit seems to invite the Administration to simply divide the powers of the U.S. Attorney between two people—rather than one. So divided, the opinion seems to suggest, then there is not a single "acting U.S. Attorney." And, accordingly, no problem exists under the relevant statutes with those two appointees each exercising half of the powers of the U.S. Attorney. Rather than appeal the Circuit's ruling (or, perhaps, in addition to appealing), the Administration could swiftly work-around the decision by cleaving Habba's duties in half.
The background surrounding the dispute has been laid out in my earlier posts, and recounted this morning by co-blogger Jonathan Adler's post about the Third Circuit ruling. In a nutshell, Senate Democrats have (for whatever reason) been slow-walking Trump Administration nominees for U.S. Attorney positions. While Senate Republicans have described these delaying tactics as "unprecedented", the important point for this blog post is that the Administration has needed to find a way to put in place its legal teams in place U.S. Attorneys Offices around the country, such as in New Jersey.
The approach that Administration took in New Jersey is, no doubt, complex. I have described the maneuver in detail previously. To quickly recap, on July 24th of this year, the Trump administration took the following steps (as the Third Circuit recounts): (1) the President withdrew Habba's then-pending nomination to be the U.S. Attorney for the District of New Jersey; (2) Habba resigned as the Interim U.S. Attorney; (3) the Attorney General issued an order appointing Habba as "Special Attorney" to the Attorney General, accompanied by a letter authorizing Habba to conduct "any kind of legal proceedings . . . which United States Attorneys are authorized to conduct" pursuant to 28 U.S.C. § 515; and (4) in the same order, the Attorney General also designated Habba as First Assistant U.S. Attorney, which purported to mean that Habba automatically became Acting U.S. Attorney pursuant to the Federal Vacancies Reform Act (FVRA), 5 U.S.C. § 3345(a)(1). As a result of these moves, the Administration contends that Habba is properly the Acting U.S. Attorney for the District of New Jersey.
A district court previously rejected the Administration's position, and today the Third Circuit affirmed the district court's disqualification of Habba. Here's the Circuit's summary of its decision (and note the language I've highlighted below):
Habba is not the Acting U.S. Attorney for the District of New Jersey by virtue of her appointment as First Assistant U.S. Attorney because only the first assistant in place at the time the vacancy arises automatically assumes the functions and duties of the office under the FVRA. Additionally, because Habba was nominated for the vacant U.S. Attorney position, the FVRA's nomination bar prevents her from assuming the role of Acting U.S. Attorney. Finally, the Attorney General's delegation of all the powers of a U.S. Attorney to Habba is prohibited by the FVRA's exclusivity provision. Therefore, we will affirm the District Court's disqualification order.
Op. at 32 (emphasis added).
So, as the Third Circuit makes clear in its summary, the problem with the Attorney General's delegation to Habba was that she delegated "all the powers of the U.S. Attorney" to Habba. Could the Circuit really mean that, so long as (let's say) only half of the powers were delegated, that would be fine?
And, indeed, that fine line seems to be what the Circuit seems to be defending.
In the penultimate paragraph of its decision, the Third Circuit explains:
Moreover, as the District Court noted, our decision that the delegation of all the powers of a U.S. Attorney would run afoul of the FVRA's exclusivity provision does not necessarily mean that some delegation by the Attorney General to Habba—or to any First Assistant U.S. Attorney—would not be permissible. 2025 WL 2416737, at *26 n.257. The Government is dismissive of this view, claiming that delegation to multiple individuals rather than one results in a "reductio ad absurdum." "It is not evident," it asserts, "why that distinction would be material." Id. But it might be material, as it is possible a more dispersed delegation of authority might not create a de facto U.S. Attorney and therefore might not run afoul of the FVRA's exclusivity provision—though we do not decide that today because those are not the facts of this case. As it stands, Habba alone is exercising all the powers of a U.S. Attorney, making her an Acting U.S. Attorney whose appointment is not FVRA compliant.
To unpack this paragraph a bit, the Third Circuit was concerned about language in the FVRA providing that the statute is "the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any [PAS—i.e., presidential appointment and Senate confirmation] office," 5 U.S.C. § 3347(a), unless a statute expressly authorizes another means of acting or interim service in a specified office, id. § 3347(a)(1). The Circuit was concerned that the Attorney General's decision to delegate to Habba "any kind of legal proceedings . . . which United States Attorneys are authorized to conduct" effectively made Habba the acting U.S. Attorney for New Jersey. As the Third Circuit noted (p. 26), the Attorney General "thus attempted to delegate to Habba the full panoply of powers of a U.S. Attorney. This de facto U.S. Attorney-by-delegation theory is plainly prohibited by the FVRA's exclusivity provision."
The Government argued to the Third Circuit that interpretations such as this one would undermine the proper functioning of the Executive Branch. The Circuit responded that it was not "tasked with resolving such policy concerns" (op. at 31). This response seems like a bit of a dodge, given the constitutional questions swirling in the background of this case. But, at the same time, the Circuit also seemed to endorse the Government's view that it was "not aware of any powers of a U.S. Attorney that are not delegable"—that is, the Attorney General must be allowed to assign someone to make criminal charging decisions in New Jersey. Nothing in the opinion casts appears to cast doubt on the Attorney General's ability to use her delegation authority to send criminal charging decisions to Habba. (Note: the opinion does cast doubt on the opinion of placing Habba in the First Assistant position of the Office and then assuming powers by virtue of that assignment.)
As noted in the paragraph above, in the Third Circuit the Government raised a reductio ad absurdum argument. The Government contended that it would be strange to rule that, while the Attorney General could not delegate authority to one person, two people would be fine. (Or would it be three? At that point, no one person would exercise most of the powers of a U.S. Attorney.) But the Circuit did not seem to find anything strange about that approach—expressly leaving that door open.
To be clear, the Third Circuit did not rule today that dividing the U.S. Attorney's duties in half would resolve the appointment problem—the Third Circuit expressly said that it was not deciding that question today. But the logic of the Circuit's decision appears to expressly allow this workaround.
In light of this logic, the quickest fix for the Administration would seem to be for the Attorney General to expressly delegate, let's say, half of the duties of the U.S. Attorney for the District of New Jersey to Habba. For example, the Attorney General could delegate all of the criminal charging decisions to Habba, while delegating all of the civil case responsibilities to another person. At that point, it would no longer be the case that Habba would be exercising "all the powers of the U.S. Attorney." Put another way (to borrow words from the Third Circuit), she would no longer be the "de facto" U.S. Attorney for the District of New Jersey, but rather the person making criminal charging decisions for the Office.
Some may argue that this workaround is a gimmick, which courts should reject to protect the Senate confirmation process for U.S. Attorneys. But as already noted, for whatever reason, the confirmation process is not fully functioning. (I take no position on those reasons here.) So someone must ultimately make charging decisions for federal crimes committed in New Jersey. And nothing in the Circuit's decision suggests that the Attorney General of the United States has to make each and every one of those hundreds of decisions. The Attorney General's charging authority is delegable, and delegating it to Habba (who has the confidence of the Attorney General) makes sense from a chain-of-command perspective.
As I've written before, the anomalous conclusion here would be to bar the Trump Administration from putting its own legal team in place to pursue the President's priorities. The cleaving-responsibilities-workaround that I've discussed here—which was expressly offered by the Third Circuit to demonstrate the reasonableness of its opinion—reaches a sensible outcome of putting the President and the Attorney General in command of important Executive Branch decisions. However convoluted the path is to that bottom-line position, that position clearly seems like the right one.
Update: I've fixed a few typos in the original post, such as adding "New" in front of the first reference to "Jersey."
