Government smartly dropped its claim below that President has inherent authority under Article II to name acting officials outside Vacancies Act. Perlmutter didn't contest firing of Librarian--argues Trump can't fire an inferior officer a department head named (her). Same issue in IAF litigation.

A proposal for temporary US attorneys: Permit AG to make *one* 120-day appointment of anyone (& keep the district court role) under 546. But for Vacancies Act (modeled after acting IG reform in NDAA): restrict picks to other confirmed people & senior DOJ people there >90 days before the vacancy.

At least here, Congress now requires acting IGs to be drawn from IG offices. They could do that for acting US attorneys.

Great live thread of this morning's Third Circuit oral argument in the Alina Habba Vacancies Act case. I agree that unfortunately the judges did not show the command of the basics of the FVRA that you would hope for.

I don't buy the government's argument at the end that it does not use delegation for the whole job, that it goes to the FVRA first. That's not what it did at FEMA--both "heads" are serving through delegation, not the FVRA. Past Administrations have used delegations for whole jobs--is that allowed?

Seems like Giraud is now saying that Habba can oversee all legal proceedings but not give speeches through delegation. Not sure they want to end up there....

I am listening to CA3 argument now on the Vacancies Act. I am screaming & we are only on minute 4. This is separate from the merits. YOU ARE OFTEN THE FIRST ASSISTANT AND THE ACTING. Now you might not be a proper first assistant but the Vacancies Act assumes when it applies the default has 2 titles.

Try 2: He named himself 1st asst. Seems like 1st asst is an inferior office, requiring head to name. Also brings up the ? from US Attorney cases about whether you can name a 1st asst after a vacancy. I think yes (if it's the director), but Congress needs to limit. www.nytimes.com/2025/10/06/u...

The unitary executive theory puts all the power of the executive branch in the hands of one person. That is a problem when he is unaware of some pretty big decisions being made by his underlings.

I spent the last several days wandering around federal courthouses in NJ to see how a judicial ruling, which concluded Alina Habba had no authority to be the state’s top prosecutor, was affecting criminal cases. >> Here’s what I saw and heard. w/ @jonesieman.bsky.social

Although I think the Vacancies Act is broader (than the ruling today), which would help Dems >> Reps, I went back to Biden's start on DNJ's US Attorney. When the confirmed Trump 1.0 person left 1/5, his first assistant (career person) became acting and stayed until Biden's pick was confirmed. Norms.

Two smaller acting/interim issues in ruling specific to US Attys: (1) Court holds Vacancies Act is available, even though there is the 28 USC 546 provision (only win in ruling for government). (2) Court holds under 546, AG gets only 120 days from initial appointment so 120 days ran out on July 1.

Some thoughts on the Habba ruling. TL;DR: it upends practice of Republican and Democratic Administrations on actings. I expect Government will win on appeal, at least on the second big issue. The first big issue is about whether first assistants can be named after a vacancy. First court to rule no.

Not just about US attorneys. Judge holds that first assistants cannot be named after a vacancy. And that you cannot use delegation (even of nonexclusive functions) for covered positions under the Act (though they can be ratified later). storage.courtlistener.com/recap/gov.us...

The criticisms here of the effects on law students are right, but miss the most important piece: hiring on first semester grades hurts first-gen students, students who don't have lawyers in the family, students who take a little longer to adjust to law school, etc. 1/ www.law.com/2025/08/18/h...

Summary Judgement for Sara Aviel -- head of IAF! "To begin, if the President has the power to appoint acting officials to any principal office by default, then the FVRA would be utterly meaningless." storage.courtlistener.com/recap/gov.us...

All fixed now! Justice Kagan once asked a lawyer in a Vacancies Act case why his client didn’t just go public & explain violation of Act. Lawyer: Because I would have to explain the Vacancies Act.

"Under the statute, someone serving as acting agency CEO must have been previously confirmed to another position..., have acted as principal deputy of the CEO for at least 90 days of the past year or be a senior nonpartisan agency official." Wrong on last 2 of the 3. www.npr.org/2025/08/13/n...

I did another podcast on the NJ US attorney mess. It is for a more general audience than some of my posts here. www.bloomberg.com/news/audio/2...

Pardon my French, but the situation in NJ is a clusterfuck. Here’s the letter from the office of the public defender to Chief Judge Brann. I’d like to point out the official channels through which the NJ attorneys and judges communicate. Unlike Trump, Bondi, Blanche, Habba, who do so via X.

Brief in opposition to the motion to dismiss on the basis that Habba is unlawfully serving as “acting” U.S. attorney. Status conference at 3. The office of the public defender also filed a letter on its own behalf (see next post).

In case you want to hear me, rather than read me. And the aim was to speaker to a broader audience than lawyers who know 3345(a) v. 3345(b) of the Vacancies Act. We had to record twice, thanks to the chaotic, fast moving events.

After Kennedy v. Braidwood Management, the HHS Secretary "could refuse to adopt the [U.S. Preventive Services] Task Force’s recommendations, fire its members, and appoint new members with questionable qualifications," Professor Anne O’Connell of @stanfordlaw.bsky.social observes. buff.ly/4Tw4Tw2

I have been thinking about this: Blanche says pursuant to presidential authority Grace was fired, not by presidential direction. Reminds me of the kerfuffle over whether Berman was fired by Barr or Trump in term 1. What a mess.

My summary & brief commentary on SCT Braidwood decision. CA5 v. Supremes was lose-lose choice for public health. Under CA5: PSTF members had to be Senate confirmed. Under Supremes: PSTF can be picked by HHS Sec only because Sec can fire them & overturn ratings. www.theregreview.org/2025/07/24/o...

A short thread on possible litigation over the NJ US attorney mess. 1. Could we have Grace v. WH Replacement? An echo of the English v. Mulvaney CFPB lawsuit in Trump 1.0, though the legal issue was different. That would require Grace to sue. She is holding herself out as the interim US attorney:

We have the presidential removal. So who thinks Habba will be named to a second 120-day term? And who thinks they will turn to the Vacancies Act and name someone else (they cannot name her so long as she is nominated)?

DOJ says it acted pursuant to President’s authority so Grace is out. The question now is will they name Habba to a new 120 day interim US attorney appointment or will they turn to the Vacancies Act and name a different person as acting US attorney.

This is random and orthogonal, but I hope the Court asked Grace first before doing this and I hope Grace went in knowing she likely won't have a government job at the end of this.

Since @orinkerr.bsky.social asked, a thread, from limited information reported online, about how I see the US attorney mess in DNJ. 1. Trump picked Habba as interim US Attorney under 28 USC 546. Technically, the AG is supposed to pick, but whatever. She gets 120 days to serve.

But she didn’t fire her as the interim US Attorney — only the President can do that.

Makes me worried about 2 things: 1. Will Trump fire the court pick? (He can do that, see Geoff Berman in Trump 1.0). 2. Will a defendant take up Thomas’s footnote in Braidwood dissent & claim court appointments of executive officers violate separation of powers? www.nytimes.com/2025/07/22/n...

Although almost every news source has called Cameron Hamilton & then David Richardson acting heads of FEMA, neither qualifies under the Vacanies Act. Richardson (& Hamilton before) is the "senior official performing the duties of the FEMA administrator." States are suing on that claim & others. 1/

They corrected it -- I had to push hard (probably too hard in retrospect, Covid is messing with my brain) but it is troubling to see mistakes about the Vacancies Act in one of the country's leading newspapers (and they initially refused to correct it).

Tried emailing with the reporters. They just don't get that their statement "It is unclear how Mr. Sarcone could occupy two positions at once" misunderstands the Vacancies Act. Rubio is both the Secretary of State and acting Archivist (among other roles). Sigh. Rather be wrong than correct, I guess.

Apparently, DOJ is calling him the first assistant. This means, I think, that the succession order was changed in the NDNY office, to make the special attorney to the AG the first assistant job as normally it would be the main deputy US attorney. Who did that?

A lot of Vacancies Act confusion @nytimes.com! The question under the Vacancies Act (where by its terms folks hold two positions) is whether the permanent job is the 1st asst job or something else. You say the former, "special atty to the AG" letter says the latter.1/ www.nytimes.com/2025/07/16/n...

This could have happened with Ed Martin in DDC. I have questions: How was he named first assistant? Did the AG pick him? Did he pick himself on his last day as interim? (Seems to go against spirit of OLC's no double actings rule & raises Appts Clause questions.) www.timesunion.com/capitol/arti...

Backseat car hammocks for babies? Thanks to government, they are no longer for sale in the United States. Now, as federal regulators come under attack from within, political scientists and legal scholars gathered for a conference on the future of studying the administrative state: bit.ly/44LJSbW

Again, he’s not the acting Administrator — he doesn’t qualify under 5 USC 3345. Anything he does that is exclusive to the job can be voided by the courts under 3348. Of course, what is he doing?

Contra NY Times, there is not even an official acting FEMA head. Cameron Hamilton (pushed out) & now David Richardson don't qualify under the Vacancies Act, "leading" the agency through delegation as the "Senior Official Performing the Duties of FEMA Administrator." www.nytimes.com/2025/07/08/c...

With no acting director as well, exclusive functions have to “go up” under the Vacancies Act.

RFK Jr. removed all 17 members of the CDC’s vaccine advisory committee. Some of their vaccine votes, like RSV and meningococcus, might now be up for a re-vote. There’s no CDC director, no public explanation, no clarity. 🧵

Good news for affiliates of American, Stanford, Georgetown, Delaware, Denver, and Maryland–Baltimore: these universities that didn't sign the initial motion have joined the amicus brief.

Stanford signed on!

Amid Trump standoff, Smithsonian says only secretary can hire and fire The Board of Regents publicly backed Smithsonian leader Lonnie G. Bunch III and called for nonpartisanship after Trump attempted to fire a museum director (gift link)

“While [CRA]...allows for fast-track repeal of...major regulations, this legislation...could demolish statutory mandates that have been on the books for decades. [It] would...end the...filibuster for a wide swath of issues.... It is a wolf hiding in the details of government organization charts.”

This is so infuriating. Their ongoing cowardice & unwillingness to join together with other universities in any public way not only won't protect them in the end but also, in the process, betrays the soul of the university & any idea that we stand for principles & a mission beyond self preservation.

The silence of Stanford (my employer) is staggering.

Waiting for my youngest kid (as an unaccompanied minor) to arrive at Dulles — that was some messy basketball.