Try 2: He named himself 1st asst. Seems like 1st asst is an inferior office, requiring head to name. Also brings up the ? from US Attorney cases about whether you can name a 1st asst after a vacancy. I think yes (if it's the director), but Congress needs to limit. www.nytimes.com/2025/10/06/u...
C.I.A. Deputy Director Has Replaced Agency’s Top Legal Official With Himself
www.nytimes.com
The unitary executive theory puts all the power of the executive branch in the hands of one person. That is a problem when he is unaware of some pretty big decisions being made by his underlings.
Right, thanks! I think it’s the same. I can see the argument both ways on whether 546 can be used again after the court pick “leaves” the job before someone is confirmed. What a mess!
Trump fired the then-court pick, creating a new vacancy under 546. Whelan’s reading creates SOP difficulties—as President must be able to fire temporary US attorneys under Supremes’ view of removal of executive officers. You could argue that President can fire and then turn to FVRA (but not 546). 2/
Does look like 546, and not FVRA (title on indictment doesn’t say acting & FVRA would not allow her to be nominee). Not sure I agree with Whelan, however. It’s not successive AG appointments. There was a court appointment under 546 that took effect (unlike Desiree Grace in DNJ). 1/
I discuss the issue here: columbialawreview.org/wp-content/u...
columbialawreview.org
The Habba judge said you cannot name 1st assistants after a vacancy (1st court to do so though Cuccinelli case came close). OLC, GAO & many others think you can name a 1st assistant after vacancy (& Administrations have relied on post-vacancy 1st assistants -- that's how Biden staffed up quickly).
We could have a competition. Sigh. But mine cannot grow anymore as it is published… and I am a bit mortified by it all.
Agreements are easy, binding compacts are harder!
There is a compact clause in the Constitution….
As @jamesgoodwin.bsky.social pointed out only if involving federal law but that could take some stuff all the table in an all RRepublican government (by maybe not public health).
Agreed, and hopefully some would fit in under state law police power that covers public health!
Such compacts require congressional approval, right?
Formal compacts need congressional approval, making the 2026 election even more critical.
Reposted by: Anne Joseph O’Connell
I spent the last several days wandering around federal courthouses in NJ to see how a judicial ruling, which concluded Alina Habba had no authority to be the state’s top prosecutor, was affecting criminal cases.
>> Here’s what I saw and heard. w/ @jonesieman.bsky.social
>> Here’s what I saw and heard. w/ @jonesieman.bsky.social
Inside the Crisis Gripping New Jersey’s Federal Courts
www.nytimes.com
Because the government needs delegation and actings to function (and the Dems need them more given political dynamics), I do want CA3 to reverse on at least one of those. Bad facts can make bad law…
The judge in the Habba litigation talked about Grace’s firing. You could tell he didn’t believe the X posts — Government produced a statement by Sergio Gor (PPO) saying he talked to Trump and then Gor fired Grace. And the judge grudgingly says ok have to take this statement as no contrary evidence.
So Trump is in trouble for firing people he can’t—inferior officers chosen by department heads (IAF, Copyright Registrar)—and then department heads are trying to fire PAS folks. Oosh.
Although I think the Vacancies Act is broader (than the ruling today), which would help Dems >> Reps, I went back to Biden's start on DNJ's US Attorney. When the confirmed Trump 1.0 person left 1/5, his first assistant (career person) became acting and stayed until Biden's pick was confirmed. Norms.
Sen. Cory Booker
@booker.senate.gov
· Aug 21
Reposted by: Anne Joseph O’Connell
Trump's manipulation of the law to install his personal attorney, Alina Habba, as U.S. Attorney was clearly unlawful as the court recognized today. This legal limbo continues to thwart our prosecutors’ ability to tackle crime in every federal case across the state, putting public safety at risk.
Two smaller acting/interim issues in ruling specific to US Attys: (1) Court holds Vacancies Act is available, even though there is the 28 USC 546 provision (only win in ruling for government). (2) Court holds under 546, AG gets only 120 days from initial appointment so 120 days ran out on July 1.
Modern agencies run on delegation in face of broken appointments process. If only the head of the department can do these vacant lower level Senate-confirmed jobs, agencies will grind to a halt. Court does allows head to ratify decisions but still big deal. FEMA is being run through delegation now.
2nd issue is bigger deal: positions covered by Vacancies Act cannot be delegated downward. (Govt claimed Habba can do the job without acting title). D Montana ruled similarly in Trump 1.0 but no court of appeals has so held. Indeed, Federal Circuit permitted in Arthrex, Supremes did not grant cert.
I think first assistants can be named after a vacancy but think text is unclear. For more, see columbialawreview.org/wp-content/u...
columbialawreview.org
Also, FVRA allows alternatives to first assistants: President can name another Senate-confirmed person as an acting (Rubio; Bessent) or a sufficiently senior person in the agency who has been in the agency at least 90 days in the year before the vacancy.
PAS officials from outgoing administration often leave before incoming administration's first assistants are named. Issue results from statutory ambiguity and is something Congress could clearly fix, perhaps by allowing post-vacancy first assistants in the first 180 days of a new administration.
by Anne Joseph O’Connell — Reposted by: Andrew Rudalevige
Some thoughts on the Habba ruling. TL;DR: it upends practice of Republican and Democratic Administrations on actings. I expect Government will win on appeal, at least on the second big issue. The first big issue is about whether first assistants can be named after a vacancy. First court to rule no.
Not just about US attorneys. Judge holds that first assistants cannot be named after a vacancy. And that you cannot use delegation (even of nonexclusive functions) for covered positions under the Act (though they can be ratified later). storage.courtlistener.com/recap/gov.us...
storage.courtlistener.com
Reposted by: Anne Joseph O’Connell, Rebecca Tushnet
The criticisms here of the effects on law students are right, but miss the most important piece: hiring on first semester grades hurts first-gen students, students who don't have lawyers in the family, students who take a little longer to adjust to law school, etc. 1/
www.law.com/2025/08/18/h...
www.law.com/2025/08/18/h...
How Law Students Are Navigating Early Recruitment | Law.com
“In some ways, that’s very powerful, to kind of have your career plan that's buttoned up,” but “the flip side of that, of course, is your career plans are buttoned up for a couple years,” said Carey B...
www.law.com
Government is likely to win on many of its removals — but on appointments we have both an Appointments Clause and Recess Appointments Clause. Aviel also has a removal claim — that President cannot fire someone a head of department appoints. I think she will win on that too. Why have Free Enterprise?