Chad Squitieri (Catholic University Columbus School of Law) has posted The Constitutionality of Inter-Branch Appointments (50 pages) on SSRN. Here is the abstract:
In July 2026, a federal district court invoked its statutory power to appoint an interim U.S Attorney. Less than one hour later, President Trump fired that court-appointed prosecutor. The firing, which followed a string of similar firings, has already resulted in constitutional litigation—which the New York Times describes as “a hotly contested and closely watched legal battle.” Should that case (or one like it) reach the Supreme Court, it will be greeted by a collection of justices who have begun to openly question whether courts may constitutionally appoint executive branch lawyers in the first place. The President’s recent firings of court-appointed prosecutors therefore give occasion to consider one of the most interesting yet understudied topics relating to the separation of powers: the constitutionality of inter-branch appointments.
Inter-branch appointments occur when an actor in one branch of government appoints an officer in a separate branch of government. Although the Supreme Court first ruled inter-branch appointments constitutional nearly 150 years ago, originalist jurists and scholars have more recently called the constitutionality of inter-branch appointments into question. In a 2025 opinion joined by Justices Alito and Gorsuch, for example, Justice Thomas expressed “doubt that . . . ‘inter-branch’ appointments are consistent with the original understanding of the separation of powers.” Prominent originalist scholars have similarly questioned the constitutionality of inter-branch appointments. This Article thus adds to the literature by offering a comprehensive explanation for why those originalist challenges to inter-branch appointments are mistaken. In short, the Constitution’s text, structure, and history all demonstrate that inter-branch appointments are constitutional.
To conclude that inter-branch appointments are constitutional in general, however, is not to conclude that each and every statute establishing inter-branch appointments is similarly lawful. That is because appointment power can be statutorily packaged with unconstitutional provisions relating to the powers to remove, control, and supervise officers after appointment. To date, arguments against inter-branch appointments have conflated those powers. But the power to appoint is analytically distinguishable from the powers to remove, control and supervise—as demonstrated by the President’s ability to appoint (but not remove, control, or supervise) judicial branch officers (e.g., judges). By decoupling the power to appoint from the powers to remove, control, and supervise, this Article elucidates a key flaw in past arguments made against inter-branch appointments, and demonstrates why the Supreme Court should not similarly rely on that flaw in the future.
Posted at 6:39 AM