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PaperclipPerfector  3mo ago (text post)   23712 thread views

Culture War Roundup for the week of November 24, 2025

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There's a real question about separation of powers if a President tries to appoint principal officers without the consent of the Senate.

Or if there's no one to actually run the US Attorney's office.

There's no way around the dysfunction. Congress tried to craft a compromise (muddle) solution.

https://reason.com/volokh/2025/07/26/appointment-of-interim-u-s-attorneys/

That is a shockingly bad post by Calabresi. The Constitution explicitly allows Congress to delegate the appointment of inferior officers to the Courts. Calabresi's response is that they can't have meant it because the Constitution sets up a unitary executive, and the clause allowing Congress to delegate appointment of inferior officers to the Courts can only apply to Court clerks and suchlike. [I am not a historian and don't know the reason for the clause, but my guess is that the framers expected the local district judge to be the highest federal official in the sticks, and therefore best-placed to make local interim appointments before a message could get to Washington]

But the only reason why you might think the Constitution sets up a unitary executive is the text of the Constitution and, critically, the Appointments Clause. You can't just say "if I ignore this sub-clause, the vibes of the rest of the text imply X. Because X, this sub-clause should be ignored."

I'm not sure appeals to original intent help here - the framers would have been horrified at the idea of a corps of full-time professional civilian Federal prosecutors, because they didn't want the Federal government to be creating enough civilian criminal law to support one. You should look at the words they wrote, not the vibes here. And the words are clear.

That is just wrong on many points.

First, unitary executive isn’t based solely (or primarily) on the appointments clause but on the theory that the constitution says the executive power is vested in the president.

This was then further explained in the federalist papers.

Second, textualism in constitutional Interpretation is quite dangerous given that (1) constitutions tend to be less built out compared to legislation and (2) they assume fluency with the political backdrop of the late 1700s.

While the text is obviously important, it is necessary to interpret in light of the broader context. The constitution was clearly setting up a system of divided government contrary to the experience under your country’s rule.

Each branch has some power but the idea is that other branches could check them given the divided power.

Inferior officers are of course necessary to carry out the power vested in each branch. So why after setting up a tripartite form of government, would the constitution allow for example courts to appoint all of the inferior officers of the executive? Or, if we are to believe your theory, the constitution permits Congress to vest appointing inferior officers of both the executive and the judicial in say the the head of HHS. So despite making the executive power vested in the president and the judicial power in the courts, the head of HHS is the person who actually gets to choose who the core people in those regimes are therefore making the president and judges basically subsidiary to the head of HHS.

That’s clearly absurd and inconsistent with the context. The more natural therefore construction is that Congress can choose how inferior officers are picked by the president within the executive, or the judges within Art III, or department heads within their department. That is, it’s implied even if it stated.

I don't buy that argument. The statutory text makes clear that after the 120 day term expires (c2), then (d) the district court appoints until the vacancy is filled. What would the point of an expiration be if the AG just gets to repeatedly re-fill it? The entire (c)(2) provision would be surplussage.

That said, maybe the Supreme Court looks at 28USC§546 and decides the way Prof Calabresi argues here. I just don't see it.

  1. The statutory text you cite is likely unconstitutional as Prof Calabresi argues since the power to appoint executive officers is vested solely within the president or department heads. Therefore a textual analysis is arguably besides the point.

  2. The provision you mention under (d) is a may; not a shall. So it doesn’t seem like the power is wrested from the executive.

Calabresi is making the argument that the same person can be given connective 120 day appointments. But it’s even a stronger argument that different persons can be given consecutive 120 day terms (ie the president or AG doesn’t lose the power to make the appointment).

Otherwise, you permit a small minority in the senate to give unfettered executive power to a judge allowing him to appoint an AUSA within his district. That doesn’t make sense in light of our checks and balances.

Therefore at minimum a constitutional avoidance reading should apply to state that the executive can appoint a second person to the office. He did so here.

Even if it is unconstitutional, the proposed interpretation is not the only way a court would cure the infirmity. That's conclusory at best.

For example, a court could consider just severing (d) and otherwise asserting that beyond that time, only an appointment with the consent of the Senate can exercise that office.

Otherwise, you permit a small minority in the senate to give unfettered executive power to a judge allowing him to appoint an AUSA within his district.

A majority of the Senate believes in the blue slip process.

That in turn means they are not in favor of confirming Halligan and Habba.

That’s fallacious. The senate supports blue slip and thinks that is worth. That is a different question compared to whether the senate is or is not favoring of confirming Halligan or Habba.

And if you severe (d), there really isn’t a strong argument that the office remains vacant. Maybe you can’t reappoint the same person but nothing in the text suggests the president cannot appoint someone.

Strong disagree. If you had the Senate vote right now on "do you want to advance Habba despite her not receiving a blue slip", then the answer would be in the negative. Graham said as much.

You are missing the point.

The senate cares about the blue slip. They don’t like Habba enough to end the blue slip tradition.

That’s a different question compared to “would the Senate advance Habba if she received the blue slip.”

You are conflating the Senate desire to respect the blue slip with the Senate rejection of Habba.

But they are the same question. Respect for the blue slip is, given facts, a rejection of Habba.

It is always within the power of the majority (plus Vance) to move whatever they want through.

More comments

For all those words, the niggling constitutional problem that the good professor doesn't address is the fact that such an interpretation would render the Appointments Clause meaningless, as the president could effectively avoid Senate confirmation permanently by just renewing the appointments every 120 days. But there's a larger practical problem; if court appointments are unconstitutional, as he says they are, then any US Attorney who has been so appointed does not have the authority of the office. At present, this is the vast majority of US Attorneys in the country. If the Supreme Court rules as the good professor wants them to, do you think that being forced to vacate nearly every Federal indictment since this summer (and a lot of rulings on cases that were indicted before them) is a good tradeoff to confirm the authority of fucking Lindsey Halligan?

It is a vexing problem. But rendering something arguably deadwood appears better than just creating out of whole cloth a power that doesn’t exist.

Of course, there is nuance to this debate. Trump is of course happy to bring his AUSA up for a vote. Probably would pass given R majority. The key missing point is that the Dems are blocking due to Senate custom.

So what you want is a situation where the power of executive is removed from the president and granted to a judge in a situation where a minority of Senators block advice and consent. That makes less than zero sense in the context of Art II, Art III, and the nature of advice and consent.

So I think you have it pretty much backwards. Yes there is a risk on a president abusing the provision, but there is also a risk of a minority in the senate abusing the provision if your read is correct. It seems like the right way to think of this is if the president is willing to put forth a candidate but the senate refuses to vote, then the president can make that person an interim AUSA. If the Senate votes and refuses consent, then the president has to start again.

This avoids the pitfall you are worried about without upending the entire constitutional order and again policing bad actors in the senate.

And this is about more than the authority of a single AUSA. This is a question of who controls the executive.

Finally, do you have a citation for most indictments being brought by court appointed AUSAs?

The key missing point is that the Dems are blocking due to Senate custom.

And that Senate custom has 51 votes for it. Probably 60.

It is a vexing problem. But rendering something arguably deadwood appears better than just creating out of whole cloth a power that doesn’t exist.

Not doesn't exist - shouldn't exist according to the theory of the structure of the Constitution preferred by right-wing jurists. The power does exist according to the Constitutional text and (limited) precedent interpreting it, and was used by Congress according to the statutory text.

No it “exists” based upon your errant reading of an ambiguous text taken out of context.

Do you believe there is a police power? It isn’t stated anywhere in the text!

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