Why The President Has The Constitutional Authority To Appoint Acting US Attorneys
In recent weeks, we have observed a slate of highly qualified US Attorney candidates, such as Alina Habba in New Jersey and Julianna Murray in Delaware, be effectively curb stomped by federal judges who have taken it upon themselves to override presidential authority by obstructing the constitutional appointment process.
These judges have taken the Federal Vacancies Reform Act (FVRA), which was passed during the Clinton administration, and used it to impose broad-sweeping and legally dubious restrictions on the tenures for acting political appointments for critical officeholders.
Some of these critical officeholders, like US Attorneys, have positions which implicate questions of law and order, as well as national security.
The judicial intervention observed has imputed a chilling effect on not only Justice Department operations—under which US Attorneys fall—but throughout the executive branch writ large, an effect that threatens to subvert the integrity of presidential powers unless the Supreme Court intervenes with an irrefutable corrective.
The President, under the Constitution’s Appointments Clause, has the power to nominate and appoint both noninferior (requiring Senate confirmation) and inferior political officers, with the advice and consent of the Senate.
Thus, the nominations, and crucially, appointments power falls squarely within the President’s gamut. Senate consultation is doubtless an essential part of the process.
But the central aim of the statute is to permit the President to empower inferior executive officeholders to carry out the duties of the Chief Magistrate, through authorities delegated by him and other senior level officeholders (like Cabinet Secretaries).
Indeed, a proper construction of the Appointments clause, based on its original intent, would insist that Congressional authority in this process be relegated to almost that of a ceremonial role—a rubberstamp for the president’s wishes.
Though that might seem shocking to modern readers, Alexander Hamilton, writing in the Federalist Papers, made it quite clear that his desired outcome for the Senate as a consultant was merely “the approbation,” or approval, of the President’s decision, whereby “his judgment alone would be exercised.”
Hamilton articulates this sentiment powerfully in Federalist No. 76, which details how “the sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation.”
He explains, “a single well-directed man, by a single understanding, cannot be distracted and warped by the diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body.”
Hamilton’s emphasis on singularity—unitarines—supports a unitary view of executive power.
In more recent years, these principles provided the undergirding in the legal and academic discourse for “unitary executive theory.”
As a matter of practical policy, this theory boils down to the conviction that executive power, as fundamentally a law-enforcement power that is coextensive and superordinate to judicial power, which deals with justice, works best when it can be exercised swiftly and apart from the deliberative process of legislative bodies—i.e., congressional procedure.
This casts the executive in contrast with the legislative, not just in matter of function—law making versus law enforcement authority, respectively, but in the exercise of its designated function.
The reason the Executive Branch needs to be “energetic,” to again invoke Hamilton’s argument from the Federalist, is because the policy matters it deals with necessarily requires flexibility.
If the President could not order his military to protect an imminent threat to the homeland, nor more pertinently appoint subordinate attorneys under him to carry out law enforcement matters—such as the arraignment of dangerous criminals and the deportation of criminal terrorists—the very core of civil society would collapse.
This is why the Founding Fathers wove “energy” into the fabric of the Executive Branch—it is also why cumbersome laws, like the FVRA, fly in the face of the Constitution’s original intent, and furthermore why a right-minded Supreme Court would rule it unconstitutional.
The Supreme Court, in several landmark cases, reaffirmed the President’s broad appointment authority while reiterating the distinction between inferior officers, which do not require the rigorous Senate confirmation process, and noninferior ones, which do. One particularly relevant decision, Edmond v. United States (1997), affirmed just that.
The case dealt with whether the Secretary of Transportation can appoint a group of judges on the Coast Guard Court of Criminal Appeals without presidential nomination or Senate confirmation.
The Court held that the Secretary could. In a unanimous decision, authored by Justice Scalia, the Court held that the officers in question were not principal officers.
Thus, under the Appointments Clause, the Secretary may, as both a delegated authority of the President as well as via statute, constitutionally appoint such officers.
FVRA, which was signed into law a year later, yet again implicated the Appointments Clause, as well as the textual distinction between different classes of political appointments.
The relevant takeaway here is that acting authorities, which do not go through Senate confirmation, should be treated like inferior officers, under both FVRA and consistent with the Appointments Clause itself, which does not impose an “advice and consent” requirement onto the latter group.
The logic of this is straightforward: if Congress had to micromanage every executive branch officer, we would never have a functioning government—at least not during the four-year period in which a President serves out his term.
It would complete flout the bedrock principle of separation of powers because it would be the ultimate attestation of congressional usurpation.
What is more, in today’s especially polarized times, where congressional nominations have slowed to a halt, the executive branch cannot meaningfully carry out vital business now due to intentional congressional inaction, which in turn poses a serious threat to the core duties of our government.
If quadrennial elections which produce a democratic outcome for president can just easily be thwarted wily-nilly by an uncooperative or recalcitrant congress that simply disagrees with the outcome of the election, or as we are observing with the Republican congress today, critical aspects of the president’s agenda, the entire constitutional system is tossed into ominous waters.
Certainly, what we see going on today is incompatible with the Framers’ view of how appointments ought to work, and the practical application or spirit behind the true meaning of separation of powers.
The appointment power is not a tangential afterthought; it is one of the most important tools presidents have at their disposal to effectuate their agendas.
If this power is ham-fisted by Congress, the Presidency itself will be reduced to a formality, one that kowtows to an all-powerful congressional whim, which finds itself acting opposed to the President’s democratic mandate without care for the people over whom both branches preside.
The Constitution was designed such that Congress and President are co-equal; where presidents receive electoral mandates, much as President Trump did last year, Congress must heed to the former’s legislative program—and particularly to his program on political appointments.
When Congress ignores that mandate, it becomes tyrannical in its own way because of its fundamental disregard for the will of the people.
Laws like FVRA threaten that autonomy; but the President’s lawyers have even made strong arguments that in the case of acting appointments such as Habba and others, FVRA does not even apply: the authority is delegated directly by the President to the inferior officer by way of his Cabinet Secretary.
Yet, to play devil’s advocate, assuming FVRA did apply in these cases, the inferior officers in question are still governed by a different set of standards that bypass the time restrictions FVRA imposes on Senate-confirmed officers.
The latter argument makes sense because FVRA’s purpose was (irrespective of constitutionality) to ensure the President acted within the advice and consent procedures of the Appointments Clause.
It was not to encumber the executive branch altogether from performing its duties. That is the effect of the distorted construction of the statute by radical judges on the Third Circuit.
The approach taken by the judges now trying to remove the President’s designated acting US Attorneys jeopardizes the entire functioning of the executive branch because such a ruling threatens to keep these political positions, of which there are thousands—vacant indefinitely.
The lower court’s stance is unconstitutional—and flagrantly so.
First, it is incompatible with the text and original meaning of the Appointments Clause (to say nothing of Hamilton’s strident argument for near-total deference by congress to the president in the practical exercise of that power, from the Federalist).
Second, it threatens the public interest, including national security and public safety—by causing key law enforcement roles to remain vacant of their senior leadership, causing mayhem in government operations and downstream of that potential chaos on the streets.
Third, it abnegates a democratic mandate, afforded to the president in a national election to do such things, and by judicial fiat no less, a sort of “check” that was never conceived by our Founding Fathers, because it is wholly inconsistent with the constitution’s original design, while also evading democratic accountability completely.
Thus, the Supreme Court should take up FVRA, once and for all, and decide that, if FVRA is worth constitutionally salvaging, at least make clear that it is being grossly misinterpreted to thwart the President from getting his appointments into office.
Understanding today’s harsh political realities should only deepen support for the President’s position because polarization only further encumbers government operations, as demonstrated by the President’s record high number of nominees that have been withdrawn from the senate confirmation process this year alone.
As a result, the Supreme Court must clarify FVRA, so long as it does not overturn it completely, the better ruling—to send a strong signal to any activist court that would otherwise dare impede this ordinary and longstanding process, and in so doing, jeopardize the core meaning of separation of powers along the way.
The latter outcome, if realized, would be a travesty for the country and the Constitution, and one that would be exceedingly difficult to ever rectify in the future.
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