Appointment of Interim U.S. Attorneys
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 und
Article from Reason.com
The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.
