On about two dozen occasions, the Supreme Court had to step in during President Trump’s second term because many inferior courts refused to accept that he is the president. The justices must do so again, after lower courts invalidated the appointments of acting U.S. attorneys Alina Habba of the District of New Jersey and Lindsey Halligan of the Eastern District of Virginia.
The Senate has a tradition that is over a century old called the blue slip. Home-state senators have an extraordinary power: the ability to veto U.S. marshals, U.S. attorneys and U.S. district judges. In order for nominees to proceed, home-state senators must return a blue slip approving the nominations. Senators will never let this power go, so administrations have to bear the consequences. In New Jersey, leftist Senators Cory Booker and Andy Kim have refused to allow the nomination of Alina Habba to serve as U.S. attorney. Likewise, in Virginia, their fellow leftist Senators Tim Kaine and Mark Warner will not acquiesce to the nomination of Lindsey Halligan to serve as U.S. attorney. As such, Attorney General Pam Bondi appointed Habba and Halligan to 120-day terms to serve on an interim basis, as 28 U.S.C. § 546 allows. Halligan replaced another interim prosecutor, Eric Siebert, who departed shortly before his 120 days lapsed.
After 120 days have expired, leftists asserted that Bondi can make no more appointments; only district judges can. The Executive Branch, this argument goes, has no say whatsoever after 120 days. This result would lead to a scheme where leftist senators can block President Trump’s nominees. Then, courts composed mostly of leftist judges in these blue states can install leftist puppet U.S. attorneys, and the Executive Branch must grin and bear it, just as with the blue slip process.
The 120-day limit first appeared in a statute in 1986. During the years of Presidents Clinton and Bush, attorneys general made successive 120-day appointments under the statutory scheme in effect from 1986-2006, the same scheme as today. Yet, Clinton Judge Cameron Currie of South Carolina did not view this historical evidence as persuasive when she invalidated Halligan’s appointment. Halligan secured indictments against New York Attorney General Letitia James for mortgage fraud and former FBI Director James Comey for false statements to and obstruction of Congress concerning the Russiagate hoax.
Those indictments are, for the moment, invalid. Currie’s opinion drips with disdain for Halligan, noting Halligan’s lack of prosecutorial experience. This issue is irrelevant to the legal question. Halligan, under Currie’s analysis, could have had three decades of prosecutorial experience, and her appointment would still have violated the Constitution’s Appointments Clause. Currie also quoted another irrelevant piece of evidence: President Trump’s social media post demanding Bondi move faster on prosecutions. Whether Halligan’s appointment is valid has nothing to do with that post. Its inclusion thus has no valid legal purpose.
The Appointments Clause vests appointment power in a president, by and with the advice and consent of the Senate, for principal officers. Congress can also require the advice and consent process to apply to inferior officers, and it did so with respect to U.S. attorneys. As such, presidents nominate U.S. attorneys, and the Senate confirms them. When there are vacancies, attorneys general can fill them for 120 days at a time, and a separate part of Section 546 allows for district courts to make appointments after the 120 days have expired. The Constitution grants department heads and courts the power to appoint inferior officers. District judges, for example, appoint magistrate judges.
Section 546 does not vest the authority to appoint U.S. attorneys exclusively in district courts. Under the reading of the judges who have invalidated the appointments of Habba and Halligan, President Trump’s attorney general could not make a 120-day appointment, either. The text of Section 546 does not specify a 120-day appointment per president. When one president’s attorney general makes a 120-day appointment, these judges absurdly prevent any future president’s attorney general from doing so in that district. District judges, therefore, have all the power until the Senate confirms a nominee one of these years or decades.
Fortunately, the issue now is ripe for Supreme Court review. This week, a Third Circuit panel ruled that Habba’s appointment is invalid. The justices should decide the cases together, even though the Fourth Circuit has not ruled on the Halligan appeal. There is only one circuit with all states that have Republican senators: the Fifth. This district court control could continue into the terms of a President Vance.
The easiest way to correct the lower court’s error is for the Supreme Court to hold that Section 546 allows attorneys general to make more than one 120-day appointment. Alternatively, the justices could hold that Section 546’s stripping of appointment power from the Executive Branch with respect to its officials violates the separation of powers.
In the face of immense criticism from Democrat politicians, the leftist media, and academic elites, the justices have intervened time and again to thwart unlawful interference by resistance lower courts. Because of the Supreme Court’s intervention on issues ranging from the ability to fire Executive Branch employees to the ability of the president to revoke temporary protected status from illegal immigrants, President Trump has been able to do his job far more effectively.
Bondi, Solicitor General John Sauer, and their team of stellar lawyers have amassed a success rate of over 90% at the Supreme Court. The justices must restore Habba and Halligan to preserve the separation of powers and prevent U.S. attorneys from being servants of district courts instead of presidents.