The Statute Allowing Judges to Appoint Interim U.S. Attorneys is Constitutional
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 C
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