The Defense Challenge to Alina Habba’s Appointment is Weak
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
Article from Reason.com
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