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Separation of Powers

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.

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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. Read More

Academic Freedom

The Value of Institutional Neutrality for Free Inquiry

My new article in the First Amendment Law Review's symposium on campus free speech

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Last fall, the First Amendment Law Review at the University of North Carolina hosted a symposium on campus free speech issues. The issue with articles from the symposium is now out. You can find my contribution here.

The article is called "The Value of Institutional Neutrality for Free Inquiry." There are multiple reasons for universities to adopt a policy of what has become known as "institutional neutrality." This article focuses on the value of such an institutional policy for protecting a climate of free inquiry for individual scholars at the institution.

The article revolves around three core concerns about how a departure from institutional neutrality norms damages free inquiry. Read More

Religion and the Law

Religious Exemption Claim by Nonprofit Providing Supervised Illegal Drug Use Can Go Forward

The Third Circuit held that such organizations may raise religious exemption claims, though it declined to decide (at this stage of the litigation) whether the claim would prevail on the facts of this case.

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From U.S. v. Safehouse, decided Thursday by Third Circuit Judge David Porter, joined by Judges Thomas Hardiman and Michael Fisher:

Safehouse, a Pennsylvania nonprofit corporation, was established in 2018 to address the abuse of opioids in Philadelphia. It seeks to provide overdose prevention services, including supervised illegal drug use. According to Safehouse, what it calls "medically supervised consumption" is salutary because opioid overdoses can be mitigated if trained staff are nearby….

[A]s a provider of supervised illegal drug use, Safehouse would violate 21 U.S.C. § 856(a)(2). Safehouse argues that its Board members' shared religious belief in the value of human life motivates it to provide "evidence-based public-health interventions" and that government intervention with those services substantially burdens its religious exercise.

The District Court rejected Safehouse's argument. It reasoned that non-religious entities are not protected by the Religious Freedom Restoration Act ("RFRA") and the Free Exercise Clause of the First Amendment. As we explain below, that was reversible error….

Read More

Second Amendment Roundup: Whatever Happened to Koons?

Third Circuit still hasn’t decided New Jersey’s years-old “sensitive places” appeal.

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The ink wasn't even dry after the Supreme Court decided Bruen in 2022 when New Jersey and a handful of other disgruntled states rushed to counterattack by criminalizing the carrying of firearms by persons with permits in numerous public places.  "The legislative record reveals the Legislature paid little to no mind to Bruen and the law-abiding New Jerseyans' right to bear arms in public for self-defense. Again, the law's primary sponsor declared that 'Because of Bruen, more New Jerseyans will die as result of gun violence.'"

Chief Judge Renée Marie Bumb in the consolidated cases of Koons & Siegel v. Platkin, decided on May 16, 2023 wrote an incredibly thorough 230-page opinion, applied Bruen's text and history approach, and found that much of the New Jersey law likely violated the Second Amendment.  She issued a preliminary injunction against enforcement of those provisions.

The most egregious portions of the law made it a felony to enter private property open to the public unless a "gun owners welcome" sign was posted, or to carry a loaded handgun in a motor vehicle.  Other banned places ran the gamut from bars and beaches to public gatherings and state parks.

Judge Bumb analyzed countless historical laws cited by the state and found that they were not appropriate historical analogues that would justify the current prohibitions.  I'm proud to say that she repeatedly cited two of my books, The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? and The Founders' Second Amendment.

New Jersey filed an emergency motion for stay pending appeal, which the Third Circuit granted in part and denied in part on June 20, 2023.  The injunction against the laundry list of specific "sensitive places" was stayed, while the injunction regarding private property open to the public and carry in vehicles was left in place.  The clerk's office was "instructed to issue an expedited briefing schedule forthwith."

The Third Circuit then held oral argument promptly on October 25, 2023.  For the two consolidated cases, the argument lasted two hours and forty minutes before Judge Cheryl Ann Krause, Judge David Porter, and Judge Cindy Chung.  And that's where the trail ends.  Almost two years have passed without a decision.

To be sure, the state submitted countless pages of historical laws into the record.  But they are all either not analogues, because they do not concern the peaceable carrying of arms, or were enacted toward the end of the nineteenth century, too late to be relevant to the original public understanding of the Second Amendment.  The judges and their clerks need not expend too much time reviewing them.

Justice Clarence Thomas has several times ended a dissent from denial of cert with words like the following, in this instance from Snope v. Brown: "I doubt we would sit idly by if lower courts were to so subvert our precedents involving any other constitutional right. Until we are vigilant in enforcing it, the right to bear arms will remain 'a second-class right.'"  The same logic applies when lower courts unduly extend deciding constitutional claims.

Hopefully the Third Circuit will decide Koons in the near future.

Tariffs

Trump's Trade Deals Won't End the Harm Caused by His Tariffs

In each case, tariffs remain much higher than they were before the deals.

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Trump has reached a trade deal with the European Union, which follows previous deals with the UK, Japan, Vietnam, and the Philippines. Some might view these deals as vindication of Trump's "Liberation Day" tariffs, and other tariff hikes. But the truth is that these deals leave us worse off than before. In each case, tariff rates under the deals are vastly higher than they were before Trump started his trade war. For example, the new tariff on most EU goods will be 15%, compared to an average rate of 1.47% before Trump's second term (the EU imposed an average %1.35 rate on US imports). It's a similar story with Japan (15% vs. 2%), Britain (10% vs. 3.3%), and the others. Moreover, under the Administration's interpretation of the International Emergency Economic Powers Act (IEEPA), Trump would retain unfettered discretion to raise tariffs further any time he wants for any reason. That means the deals have no real legal force, and aren't genuinely binding.

As a result, Americans will face much higher prices than before on many goods, and there will be other severe economic damage, as well. All told Trump's IEEPA tariffs are expected to impose some $1.9 trillion in tax increases on Americans over the next decade, costing the average household some $1000 per year, while also raising prices and greatly diminishing economic growth. In addition, giving one man total control over tariffs undermines the rule of law and the stable expectations on which the international economy depends. There is also the damage the tariffs do to relations with US allies, thereby weakening the Western alliance relative to rivals like China and Russia.

The relatively modest reductions in tariffs against US exports these deals include (e.g. Britain reduced its tariffs from an average of 3.8% to 1.8%) don't even begin to offset the enormous harm - even if we (wrongly) discount all harm done to foreign trading partners, and only consider effects on the US.

Obviously, the trade deals also don't change the fact that Trump's IEEPA tariffs are illegal for a wide range of reasons. The Liberty Justice Center and I secured a ruling against the "Liberation Day" tariffs in the US Court of International Trade, and our case (together with one filed by 12 state governments) is now on appeal in the Federal Circuit. We hope to continue to prevail, now aided by big-name legal scholars and appellate litigators Michael McConnell and Neal Katyal. We also have the support of amicus briefs from a wide range of group across the political spectrum.

Chief Justice Roberts as Chancellor of the Smithsonian Institute

The New York Times offers some insights into the Parliamentarian in Chief.

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Chief Justice Roberts also serves as the Chancellor of the Smithsonian Institute. Historically, at least, this position did not involve much controversy. But times have changed. President Trump sought to remove the Director of the National Portrait Gallery. In June, the Smithsonian board discussed the matter. And the New York Times spoke with at least three people who were present at the meeting:

On June 9, the leadership of the Smithsonian gathered for a quarterly, but hardly routine, meeting behind closed doors.

President Trump had already called out the Smithsonian for being part of a "concerted and widespread effort to rewrite our nation's history" and announced he was firing the head of its National Portrait Gallery.

Now the Smithsonian's board planned to discuss a response — a resolution carefully calibrated to avoid a confrontation with the president. The resolution would reinforce that only the Smithsonian had the power to fire its museum leader, but would also order a full review of Smithsonian content for bias.

After the resolution had been introduced, Representative Carlos Gimenez of Florida, a Republican board member, interrupted, proposing instead that the board fire the gallery director, as Mr. Trump had sought. His effort was quickly shut down by the Smithsonian's chancellor — the chief justice of the Supreme Court, John G. Roberts Jr.

"We already have a motion on the floor," Chief Justice Roberts said, according to three people with knowledge of the proceedings.

The original resolution succeeded. The meeting quickly moved on.

If the moment was unusually tense for a gathering of a museum board, the intervention by the chief justice, a committed parliamentarian, was not. As chancellor, he is known to preside over meetings with a strict focus on rules and procedures, assiduously avoiding partisan debates — a demeanor that aligns with his reputation as an institutionalist and incrementalist jurist.

The rest of the article presents an informative background of the Chief Justices's role at the Smithsonian.

This vignette is largely consistent with things I've heard over the years about the Chief Justice. At the Judicial Conference, all discussions are limited to items on the "discuss list." And if an item is not on the discuss list, it cannot be debated. And Roberts has large control over what is on the discuss list. Remarkably, the Judicial Conference's ill-fated reassignment policy wasn't on the discuss list. I imagine he treats deliberations at the Smithsonian in a similar fashion.

Does Roberts bring this domineering approach to the Supreme Court's conference? Justice Steven discussed Roberts's role as a presiding officer in his memoir, Five Chiefs. Here is an excerpt:

With regard to all of his special responsibilities, John Roberts is an excellent chief justice. Perhaps he is not quite as efficient as his predecessor when presiding in open court or in the Court's conferences, but his occasional and minor deviations from strict enforcement are well justified. His own extensive experience as an advocate may have made him slightly more generous in allowing a few comments after the red light is turned on, but in my judgment those allowances have always been appropriate.

In our private conferences he was always a well-prepared, fair, and effective leader. For instance, when I added cases to the list of cert petitions to be discussed—that is, when I asked that the conference discuss petitions for certiorari that the chief had not thought worth our attention—it was apparent that he always took a second look at them. By the time the conference arrived, he was prepared to explain his vote to deny, or to acknowledge that there were valid reasons for considering a grant. He also welcomed more discussion of the merits of the argued cases than his predecessor—including expansions of the reasoning behind his own votes—but he maintained the appropriate impartiality in giving each of us an opportunity to speak. In sum, he is a better presiding officer than both of his immediate predecessors.

I think this story must be coupled with the recent leak to the Federalist about the Judicial Conference. People are apparently no longer afraid of talking about Roberts to the press. The grip of the iron fist loosens.

Appointments Clause

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.

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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.

Read More

Originalism

My Jotwell Review of Michael Ramsey's "The Originalist Case Against the Insular Cases"

The article makes a compelling argument that has broader implications.

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My just-published Jotwell review focuses on Michael Ramsey's important new article,, "The Originalist Case Against the Insular Cases." Here is an excerpt:

In the Insular Cases of the early twentieth century, the Supreme Court ruled that much of the Constitution does not apply to America's "unincorporated" overseas territories, such as Puerto Rico and other territories acquired as a result of the Spanish-American War of 1898. Thus, the federal government could rule the people there without being constrained by a variety of constitutional rights. Only "fundamental" rights were held to constrain the federal government's powers over the inhabitants of these territories, while other constitutional constraints on federal power did not apply. In a 2022 concurring opinion, Supreme Court Justice Neil Gorsuch urged the Court to overrule these decisions. Prominent originalist legal scholar Michael Ramsey's important new article explains why Gorsuch was right.

Ramsey compellingly demonstrates that the Insular Cases were wrongly decided, at least from an originalist standpoint. And his argument has potential implications that go beyond the status of people living in "unincorporated" territories. There have been various previous critiques of the Insular Cases. But Ramsey's is the first systematic scholarly dismantling undertaken from an originalist perspective.

The unincorporated territories currently include American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands, plus some minor islands….

In a detailed examination of the text and original meaning of the Constitution's Territories Clause and other relevant provisions, Ramsey shows that "under the Territory Clause, Congress's power over U.S. territory [outside the states] is very broad, essentially amounting to a general police power." But he argues persuasively that "the grant to Congress of general police power in territories does not suggest that Congress is thereby freed of other specific limitations on Congress's power arising from the Constitution's structural and individual rights provisions…."

Ramsey also demonstrates that this conclusion is consistent with federal policy and Supreme Court precedent of the pre-Civil War era. The tradition was continued in the initial aftermath of the Reconstruction Amendments. For example, it was generally understood that children born in federal territories were entitled to birthright citizenship.

That longstanding body of precedent was undercut by the Insular Cases as a result of the racism and imperialism of the late nineteenth and early twentieth centuries…

The Insular Cases are not the only important nonoriginalist, atextual abrogations of constitutional rights blessed by the Supreme Court as a result of late-19th century racial bigotry. The same is true of the "plenary power" doctrine, which exempts immigration restrictions from many of the constitutional constraints that apply to all other exercises of federal power. While later decisions have called elements of this doctrine into question, enough remains that it is not completely clear whether, for example, the government can deport immigrants for speech protected by the First Amendment….

Even if completely invalidating federal immigration restrictions entirely would be too great a break with precedent, federal courts would at least do well to rule that such restrictions are subject to the same individual rights and structural constraints as all other legislative powers…

Academic Freedom

Diversity Statements and the First Amendment

My new article on diversity statements in faculty hiring and the First Amendment

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In 2024, I was honored to deliver the Roscoe Pound Lecture at the University of Nebraska College of Law. The article based on that lecture is now in print, and until the Nebraska Law Review updates its website with the contents of issue 4 of volume 103 you can find a PDF of the article here.

The article is called "Diversity Statements, Academic Freedom, and the First Amendment." From the abstract:

Diversity statements have become a common component of applications for faculty positions and student admission at universities across the country. They have also become politically controversial, with several states banning the use of such requirements at public universities. The use of diversity statements also raises difficult constitutional questions under the First Amendment at public universities and academic freedom questions at both public and private universities. Although there are versions of such statements that might pass constitutional muster, as commonly designed and implemented the use of diversity statements likely violates both First Amendment and academic freedom principles. Indeed, diversity statement requirements for faculty hiring are inconsistent with multiple lines of constitutional doctrine.

From the introduction:

This Article develops the constitutional case against the use of diversity statements across several parts. Part II describes what is known about how diversity statements are designed and used in universities. Part III outlines the academic freedom principles that are applicable to the use of diversity statements. Part IV reviews the history of the controversy of the use of loyalty oaths in universities in the mid-twentieth century and draws out some lessons from that experience. Part V applies government employee speech doctrine to the diversity statement requirements for faculty positions at state universities. Part VI applies the political patronage doctrine to diversity statement requirements for such positions. Part VII applies compelled speech doctrine to the use of such diversity statements. Part VIII summarizes the argument and concludes.

The thrust of over half a century of First Amendment doctrine is that state universities are to be the home of a wide diversity of thought and that the artificial imposition of intellectual uniformity on state university faculty runs contrary to First Amendment values. When state universities take adverse employment action against scholars, including by denying them employment, on the basis of their political and social ideas, the state bears a very high constitutional burden to justify such action. To sustain such action, the state must be able to demonstrate that it is taking measures that create the least interference with constitutionally protected expression that might be necessary to advance a compelling governmental interest. At the very least, this necessitates that the state be able to demonstrate that policies that burden disfavored political ideas are essential to advancing the genuine educational and scholarly mission of the university. Such speech restrictions should be professionally justifiable and not mere matters of political convenience or preference. Policies that merely serve to reinforce political orthodoxies on college campuses are constitutionally unjustifiable. Taking such principles seriously casts a substantial constitutional shadow over the practice of using diversity statements to exclude from state university faculties individuals with disfavored beliefs and opinions about matters of political and social controversy.

Read the whole thing here.

SG to SCOTUS: "District-Court Defiance of this Court's Decision in California has Grown to Epidemic Proportions"

"For good reason, the Constitution vests the 'judicial Power' in 'one supreme Court,' to which all others are 'inferior Courts.'"

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On a regular basis, district court judges accuse the Trump Administration of flouting the law, and ignoring their orders. The Washington Post counted them up! Yet, at the same time, district court judges are flouting Supreme Court precedent.

Just yesterday, in Boyle (not Moyle), the Supreme Court reversed a district court for not following Wilcox, which "squarely controlled."

Now, the Solicitor General has filed yet another emergency application. Here, a federal judge in Massachusetts ordered the government to pay out certain DEI grants. Under the Supreme Court's decision in Department of Education v. California, these disputes belong in the Court of Federal Claims. But lower federal courts disagreed.

The Solicitor General used especially sharp language to describe this lower-court resistance--no, not resistance of President Trump, but resistance of the Supreme Court itself.

This application presents a particularly clear case for this Court to intervene and stop errant district courts from continuing to disregard this Court's rulings. . . . Notwithstanding this Court's decision in California, the District of Massachusetts declined to stay a materially identical order. . . . When the government pointed out that respondents' challenges to those grant terminations belong in the Court of Federal Claims under California, the district court recognized with serious understatement that California was a "somewhat similar case." App., infra, 221a. Yet the district court dismissed this Court's ruling as "not final" and "without full precedential force," "agree[d] with the Supreme Court dissenters," and "consider[ed] itself bound" by the First Circuit ruling that California repudiated.

As I noted earlier, Boyle makes clear that shadow docket rulings are precedential, though I think that point was established during the COVID free exercise cases. Hell, Chief Justice Roberts's concurrence in South Bay was treated as a super precedent! In July 2022, I wrote about the precedential value of emergency docket rulings.

The Solicitor General writes that this resistance has grown to "epidemic proportions":

Worse, this case is no outlier. District-court defiance of this Court's decision in California has grown to epidemic proportions, as courts have issued nearly two dozen decisions asserting jurisdiction over claims challenging grant or funding terminations since California.

The SG, echoing Justice Kavanaugh's CASA concurrence, explains that the Supreme Court is supreme and the Inferior Courts are inferior.

For good reason, the Constitution vests the "judicial Power" in "one supreme Court," to which all others are "inferior Courts." U.S. Const. Art. III, § 1. As this Court explained yesterday, when lower courts face materially identical stay requests, this Court's emergency orders "squarely control[]." Boyle, slip op. 1. Our judicial system rests on vertical stare decisis, not a lower-court free-for-all where individual district judges feel free to elevate their own policy judgments over those of the Executive Branch, and their own legal judgments over those of this Court.

This application will likely be granted. I think lower courts still will not get the memo. Let's see how long it take Circuit Justice Jackson to call for a response.

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