At Volokh Conspiracy, Steven Calabresi: Appointment of Interim U.S. Attorneys. From the introduction:
Attorney General Robert Jackson in his famous speech on the role of the federal prosecutor pointed out that from 1789 to the present-day U.S. Attorneys have always required Senate confirmation because of their "immense power" and because they need to win "an expression of confidence in [their] character by both the legislative and the executive branches of the government." Jackson's point is certainly true. But a Senate minority that lacks the votes to reject a nominee cannot be rewarded if, after 120 days, they have used Senate procedure to prevent a vote from taking place.
This issue is coming up all over the country right now because Senate Democrats refuse to allow floor votes on President Trump's nominees to be U.S. Attorney. The matter is thus of great practical importance in the District of New Jersey and in other Districts as well.
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The power to prosecute is a core "executive Power" as those words are used in Article II, Section 1. Only the President or the Attorney General can designate an Interim U.S. Attorney who will and must use only the "executive Power." The office of Interim U.S. Attorney is not quasi-judicial, or quasi-legislative. It involves solely the exercise of executive power. This means that only the Attorney General can appoint Interim U.S. Attorneys, and the President or Attorney General can and should on principle fire any Interim U.S. Attorney appointed by federal district judges.
Yes, it is true that the federal statute, 28 U.S.C. § 546, that governs appointment of Interim U.S. Attorneys—under some circumstances—allows federal district court judges to appoint Interim U.S. Attorneys. Versions of this unconstitutional law have been in the U.S Code since the Civil War, although they have rarely been invoked. That portion of § 546 is unconstitutional under Seila Law and Trump v. Wilcox (2025). Section 546 reads (with the unconstitutional language marked in bold):
(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.
(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.
(c) A person appointed as United States attorney under this section may serve until the earlier of—
(1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or
(2) the expiration of 120 days after appointment by the Attorney General under this section.
(d) If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.
Title 28 U.S.C. § 546(d) is unconstitutional under Seila Law because it allows the exercise of executive power by someone who has not been hired by the President or his Heads of Departments. …
I'm not entirely sure that's true; the text of the appointments clause, which allows Congress to shift appointments of inferior officers to the heads of departments or the courts of law, doesn't limit appointment by the courts of law to judicial rather than executive offices. As Professor Calabresi acknowledges, finding a limit depends on a structural inference against such interbranch appointments. But, as long as the President can remove any judicially appointed executive officer, I'm not sure the structural inference is warranted. Moreover, the text of the clause seems to vest discretion in Congress as to the appropriateness of the appointments: "as they [Congress] think proper." (On the other hand, Justice Scalia took Professor Calabresi's position in Morrison v. Olson — showing that Scalia was not a pure textualist and was open to at least certain kinds of structural reasoning.)
RELATED: Paul Cassell argues against Professor Calabresi's view on similar textualist grounds here: The Statute Allowing Judges to Appoint Interim U.S. Attorneys is Constitutional.
Posted at 6:12 AM