Eugene Volokh's Blog, page 65

[Keith E. Whittington] The Value of Institutional Neutrality for Free Inquiry

[My new article in the First Amendment Law Review's symposium on campus free speech]

Last fall, the First Amendment Law Review at the University of North Carolina hosted a symposium on campus free speech issues. The issue with articles from the symposium is now out. You can find my contribution here.

The article is called "The Value of Institutional Neutrality for Free Inquiry." There are multiple reasons for universities to adopt a policy of what has become known as "institutional neutrality." This article focuses on the value of such an institutional policy for protecting a climate of free inquiry for individual scholars at the institution.

The article revolves around three core concerns about how a departure from institutional neutrality norms damages free inquiry.

One is mission erosion.

Scholarly institutions that seek to take positions on matters of social and political controversy have altered their core mission and have done so in a way that will do damage to that mission. Rather than being a forum within which scholarly controversies rage, the university will position itself as a judge of those controversies. Rather than playing host to ongoing scholarly disagreements, the university will attempt to authoritatively settle those disagreements. Rather than privileging the process of scholarly disputation, the university will come to privilege a set of particular scholarly findings and conclusions. Rather than elevating expertise to better inform the polity, the university will exalt non-expert opinion in the hopes of influencing the polity. Institutional statements risk subverting the university's commitment to free inquiry into difficult and controversial subjects.

Especially at the level of academic units, empowering departmental faculty to issue institutional political statements breeds a climate of political orthodoxy and transforms scholarly entities into political clubs.

Early in the twentieth century, the German sociologist Max Weber called attention to these dangers when universities were struggling to maintain their autonomy from political forces. The public interest on which the autonomy of the universities rested, he thought, depended on the ability of professors to think freely and speak independently of social and political pressures. "Society as a whole has no interest in guaranteeing the permanent tenure of a professorial corps which has been carefully screened to determine that its political views are unexceptional."

Professors are quick to recognize the truth in Weber's statement when the ideological screening of the professoriate is being done by political officials or trustees. They are slower to admit its truth when the ideological screening is done by the incumbent members of the professoriate itself. But if it would be damaging to the public good for the governor of Florida to screen state university professors for their political conformity, it would be equally bad for the faculty of the law school to impose such a screen themselves—even if the political conformity that such a screen would create would differ depending on who deployed it. Weber contended, "'The freedom of science, scholarship and teaching' in a university certainly does not exist where appointment to a teaching post is made dependent on the possession—or simulation—of a point of view which is 'acceptable in the highest circles' of church and state." Things are not improved if a potential faculty member must simulate the political perspectives of the existing members of the faculty rather than the highest circles of church and state. Faculties should not "function as deputies on behalf of the political police," even if the political police are not the ones currently reigning in the state capitol. It is a disservice to the greater public if scholars must pass through a screen to ensure that their political views are acceptable to those in power.

Finally, leaving the norm of institutional neutrality behind as a vestige of a bygone era can eventually be expected to result in the demand that many traditional practices of universities be altered. If scholarly entities, whether universities, scholarly associations, or scholarly publishers, posture as political actors, then there will be demands that they act like it -- by suppressing dissenting voices and inconvenient truths.

Exclusion of dissenters and suppression of dissent is the most obvious thing to do if an institution is a committed partisan rather than a neutral platform. Universities routinely resist the call to purge the campus of political dissenters on the grounds that the university is the home to many diverse voices. The university does not endorse any of those voices, and none of those voices speaks for the university. A professor who expresses a controversial political opinion speaks for himself alone. Likewise, a controversial speaker who is brought to campus is not endorsed by the university that hosts him. The university has no one message to convey, and thus it tolerates the exhibition of many messages on its campus. It is the marketplace of ideas, not the purveyor of one idea. If the institution instead becomes an advocate rather than a forum, then there is less reason to tolerate counterprogramming to its favored message. It can no longer distinguish its own voice from the voice of those who speak on campus because now it has become the messenger for delivering a particular point of view. A diversity of voices only muddles the message the university has resolved to communicate. If the university as an institution knows the right answer to any particular political or social question, then it can only breed confusion if it allows on campus those who express the wrong answer to those questions. If the university has a dogma, then it need not tolerate heretics.

If universities wish to remain the serious scholarly institutions that they have held themselves out to be since the end of the nineteenth century, then they must refrain from committing themselves, as institutions, to particular right answers on contested and controversial political and social issues.

Read the whole thing here.

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[Eugene Volokh] Religious Exemption Claim by Nonprofit Providing Supervised Illegal Drug Use Can Go Forward

[The Third Circuit held that such organizations may raise religious exemption claims, though it declined to decide (at this stage of the litigation) whether the claim would prevail on the facts of this case.]

From U.S. v. Safehouse, decided Thursday by Third Circuit Judge David Porter, joined by Judges Thomas Hardiman and Michael Fisher:

Safehouse, a Pennsylvania nonprofit corporation, was established in 2018 to address the abuse of opioids in Philadelphia. It seeks to provide overdose prevention services, including supervised illegal drug use. According to Safehouse, what it calls "medically supervised consumption" is salutary because opioid overdoses can be mitigated if trained staff are nearby….

[A]s a provider of supervised illegal drug use, Safehouse would violate 21 U.S.C. § 856(a)(2). Safehouse argues that its Board members' shared religious belief in the value of human life motivates it to provide "evidence-based public-health interventions" and that government intervention with those services substantially burdens its religious exercise.

The District Court rejected Safehouse's argument. It reasoned that non-religious entities are not protected by the Religious Freedom Restoration Act ("RFRA") and the Free Exercise Clause of the First Amendment. As we explain below, that was reversible error….

In 2019, the Department of Justice began this lawsuit against Safehouse and its then-Executive Director seeking a declaration that supervised illegal drug use violates 21 U.S.C. § 856(a)(2)…. Section 856(a) makes it unlawful to "manage or control any place … and knowingly and intentionally … make available for use … the place, for the purpose of unlawfully … using a controlled substance." The District Court read "for the purpose of" as referring only to the purpose of whoever "manage[s] or control[s]" the "place" at issue. A divided Panel of this Court rejected that construction, read the language to refer to the purposes of third parties, and declined Safehouse's related invitation to "harmonize" our reading of the plain text with recent federal efforts to combat the opioid epidemic.

On remand, … [t]he District Court dismissed Safehouse's RFRA and Free Exercise counterclaims because "Safehouse is not a religious entity." That was error because RFRA's plain text and Free Exercise doctrine are clear that those statutory and constitutional protections extend to non-natural persons, including so-called non-religious entities.

In so holding, we express no view about whether threatened prosecution of Safehouse substantially burdens its exercise of religion. We likewise decline Safehouse's invitation to determine in the first instance whether it has plausibly stated RFRA and Free Exercise claims. We only address the proper object of RFRA's and the First Amendment's protections: that object includes a non-natural entity allegedly exercising religion, even if the entity itself is not religious….

The court basically followed Burwell v. Hobby Lobby Stores, Inc. (2014) on this score:

The government in Hobby Lobby conceded that nonprofit corporations are persons under RFRA. And though the Court split 5-4 on whether for-profit corporations are "persons," it was unanimous that nonprofit corporations are. The majority went further. It suggested that even "large, publicly traded corporations" are RFRA persons, though it would be "unlikely" for "corporate giants" to assert such claims in the first place. In such cases, the applicability of RFRA would likely hinge on sincerity….

"RFRA applies to 'a person's' exercise of religion" and Safehouse is a "person" claiming to exercise religion, so it is eligible for RFRA's protections. Just as Safehouse's compassion did not shield it from the plain text of § 856(a)(2), concerns about its proposed services do not withdraw the protections of RFRA….

Safehouse is also protected by the Free Exercise Clause. As Hobby Lobby recognized, "free-exercise claims brought by nonprofit corporations" are nothing new. That provisions of the Bill of Rights apply to corporate entities is "well-established." Against that backdrop, there is no "non-religious entities" carveout from the First Amendment. After all, the purpose of extending rights to corporate persons is to protect the rights of natural persons acting through the corporate form. That purpose is no less true for religious exercise than it is for other rights….

Ilana H. Eisenstein (DLA Piper) argued on behalf of defendants, and Ronda B. Goldfein and Adrian M. Lowe (AIDS Law Project of Pennsylvania), Ben C. Fabens-Lassen (DLA Piper), Peter Goldberger, and Seth F. Kreimer (University of Pennsylvania School of Law) were also on the briefs.

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[Josh Blackman] Today in Supreme Court History: July 28, 1880

7/28/1880: San Francisco prohibits operation of laundries in wooden buildings, "without having first obtained the consent of the board of supervisors." The Supreme Court found this ordinance unconstitutional in Yick Wo v. Hopkins (1886).

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[Stephen Halbrook] Second Amendment Roundup: Whatever Happened to Koons?

[Third Circuit still hasn’t decided New Jersey’s years-old “sensitive places” appeal.]

The ink wasn't even dry after the Supreme Court decided Bruen in 2022 when New Jersey and a handful of other disgruntled states rushed to counterattack by criminalizing the carrying of firearms by persons with permits in numerous public places.  "The legislative record reveals the Legislature paid little to no mind to Bruen and the law-abiding New Jerseyans' right to bear arms in public for self-defense. Again, the law's primary sponsor declared that 'Because of Bruen, more New Jerseyans will die as result of gun violence.'"

Chief Judge Renée Marie Bumb in the consolidated cases of Koons & Siegel v. Platkin, decided on May 16, 2023 wrote an incredibly thorough 230-page opinion, applied Bruen's text and history approach, and found that much of the New Jersey law likely violated the Second Amendment.  She issued a preliminary injunction against enforcement of those provisions.

The most egregious portions of the law made it a felony to enter private property open to the public unless a "gun owners welcome" sign was posted, or to carry a loaded handgun in a motor vehicle.  Other banned places ran the gamut from bars and beaches to public gatherings and state parks.

Judge Bumb analyzed countless historical laws cited by the state and found that they were not appropriate historical analogues that would justify the current prohibitions.  I'm proud to say that she repeatedly cited two of my books, The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? and The Founders' Second Amendment.

New Jersey filed an emergency motion for stay pending appeal, which the Third Circuit granted in part and denied in part on June 20, 2023.  The injunction against the laundry list of specific "sensitive places" was stayed, while the injunction regarding private property open to the public and carry in vehicles was left in place.  The clerk's office was "instructed to issue an expedited briefing schedule forthwith."

The Third Circuit then held oral argument promptly on October 25, 2023.  For the two consolidated cases, the argument lasted two hours and forty minutes before Judge Cheryl Ann Krause, Judge David Porter, and Judge Cindy Chung.  And that's where the trail ends.  Almost two years have passed without a decision.

To be sure, the state submitted countless pages of historical laws into the record.  But they are all either not analogues, because they do not concern the peaceable carrying of arms, or were enacted toward the end of the nineteenth century, too late to be relevant to the original public understanding of the Second Amendment.  The judges and their clerks need not expend too much time reviewing them.

Justice Clarence Thomas has several times ended a dissent from denial of cert with words like the following, in this instance from Snope v. Brown: "I doubt we would sit idly by if lower courts were to so subvert our precedents involving any other constitutional right. Until we are vigilant in enforcing it, the right to bear arms will remain 'a second-class right.'"  The same logic applies when lower courts unduly extend deciding constitutional claims.

Hopefully the Third Circuit will decide Koons in the near future.

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[Ilya Somin] Trump's Trade Deals Won't End the Harm Caused by His Tariffs

[In each case, tariffs remain much higher than they were before the deals. ]

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Trump has reached a trade deal with the European Union, which follows previous deals with the UK, Japan, Vietnam, and the Philippines. Some might view these deals as vindication of Trump's "Liberation Day" tariffs, and other tariff hikes. But the truth is that these deals leave us worse off than before. In each case, tariff rates under the deals are vastly higher than they were before Trump started his trade war. For example, the new tariff on most EU goods will be 15%, compared to an average rate of 1.47% before Trump's second term (the EU imposed an average %1.35 rate on US imports). It's a similar story with Japan (15% vs. 2%), Britain (10% vs. 3.3%), and the others. Moreover, under the Administration's interpretation of the International Emergency Economic Powers Act (IEEPA), Trump would retain unfettered discretion to raise tariffs further any time he wants for any reason.

As a result, Americans will face much higher prices than before on many goods, and there will be other severe economic damage, as well. All told Trump's IEEPA tariffs are expected to impose some $1.9 trillion in tax increases on Americans over the next decade, costing the average household some $1000 per year, while also raising prices and greatly diminishing economic growth. In addition, giving one man total control over tariffs undermines the rule of law and the stable expectations on which the international economy depends. There is also the damage the tariffs do to relations with US allies, thereby weakening the Western alliance relative to rivals like China and Russia.

The relatively modest reductions in tariffs against US exports these deals include (e.g. Britain reduced its tariffs from an average of 3.8% to 1.8%) don't even begin to offset the enormous harm - even if we (wrongly) discount all harm done to foreign trading partners, and only consider effects on the US.

Obviously, the trade deals also don't change the fact that Trump's IEEPA tariffs are illegal for a wide range of reasons. The Liberty Justice Center and I secured a ruling against the "Liberation Day" tariffs in the US Court of International Trade, and our case (together with one filed by 12 state governments) is now on appeal in the Federal Circuit. We hope to continue to prevail, now aided by big-name legal scholars and appellate litigators Michael McConnell and Neal Katyal. We also have the support of amicus briefs from a wide range of group across the political spectrum.

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[Josh Blackman] Chief Justice Roberts as Chancellor of the Smithsonian Institute

[The New York Times offers some insights into the Parliamentarian in Chief.]

Chief Justice Roberts also serves as the Chancellor of the Smithsonian Institute. Historically, at least, this position did not involve much controversy. But times have changed. President Trump sought to remove the Director of the National Portrait Gallery. In June, the Smithsonian board discussed the matter. And the New York Times spoke with at least three people who were present at the meeting:

On June 9, the leadership of the Smithsonian gathered for a quarterly, but hardly routine, meeting behind closed doors.

President Trump had already called out the Smithsonian for being part of a "concerted and widespread effort to rewrite our nation's history" and announced he was firing the head of its National Portrait Gallery.

Now the Smithsonian's board planned to discuss a response — a resolution carefully calibrated to avoid a confrontation with the president. The resolution would reinforce that only the Smithsonian had the power to fire its museum leader, but would also order a full review of Smithsonian content for bias.

After the resolution had been introduced, Representative Carlos Gimenez of Florida, a Republican board member, interrupted, proposing instead that the board fire the gallery director, as Mr. Trump had sought. His effort was quickly shut down by the Smithsonian's chancellor — the chief justice of the Supreme Court, John G. Roberts Jr.

"We already have a motion on the floor," Chief Justice Roberts said, according to three people with knowledge of the proceedings.

The original resolution succeeded. The meeting quickly moved on.

If the moment was unusually tense for a gathering of a museum board, the intervention by the chief justice, a committed parliamentarian, was not. As chancellor, he is known to preside over meetings with a strict focus on rules and procedures, assiduously avoiding partisan debates — a demeanor that aligns with his reputation as an institutionalist and incrementalist jurist.

The rest of the article presents an informative background of the Chief Justices's role at the Smithsonian.

This vignette is largely consistent with things I've heard over the years about the Chief Justice. At the Judicial Conference, all discussions are limited to items on the "discuss list." And if an item is not on the discuss list, it cannot be debated. And Roberts has large control over what is on the discuss list. Remarkably, the Judicial Conference's ill-fated reassignment policy wasn't on the discuss list. I imagine he treats deliberations at the Smithsonian in a similar fashion.

Does Roberts bring this domineering approach to the Supreme Court's conference? Justice Steven discussed Roberts's role as a presiding officer in his memoir, Five Chiefs. Here is an excerpt:

With regard to all of his special responsibilities, John Roberts is an excellent chief justice. Perhaps he is not quite as efficient as his predecessor when presiding in open court or in the Court's conferences, but his occasional and minor deviations from strict enforcement are well justified. His own extensive experience as an advocate may have made him slightly more generous in allowing a few comments after the red light is turned on, but in my judgment those allowances have always been appropriate.

In our private conferences he was always a well-prepared, fair, and effective leader. For instance, when I added cases to the list of cert petitions to be discussed—that is, when I asked that the conference discuss petitions for certiorari that the chief had not thought worth our attention—it was apparent that he always took a second look at them. By the time the conference arrived, he was prepared to explain his vote to deny, or to acknowledge that there were valid reasons for considering a grant. He also welcomed more discussion of the merits of the argued cases than his predecessor—including expansions of the reasoning behind his own votes—but he maintained the appropriate impartiality in giving each of us an opportunity to speak. In sum, he is a better presiding officer than both of his immediate predecessors.

I think this story must be coupled with the recent leak to the Federalist about the Judicial Conference. People are apparently no longer afraid of talking to Roberts to the press. The grip of the iron fist loosens.

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[Josh Blackman] Today in Supreme Court History: July 27, 1929

/27/1929: The Geneva Conventions are signed by United States. The Supreme Court would consider the Conventions in Hamdan v. Rumsfeld (2006).

The Roberts Court (2006)

 

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[Steven Calabresi] Appointment of Interim U.S. Attorneys

[The attorney general can appoint interim U.S. Attorneys to successive 120-day terms of office unless the nominee is someone to whom the Senate has refused to give advice and consent by a vote either in committee or on the floor.]

Alina Habba's 120-day term as President Trump's appointed Interim U.S. Attorney for the State of New Jersey recently expired without the Senate ever voting on her nomination. A panel of U.S. District Court Judges used a rarely invoked and unconstitutional federal statute to appoint a new and different Interim U.S. Attorney for New Jersey, Desiree Leigh Grace, who had been Ms. Habba's first assistant.

Attorney General Bondi fired the court-appointed Interim U.S. Attorney the day she was appointed, saying "This Department of Justice does not tolerate rogue judges—especially when they threaten the President's core Article II powers."

On Thursday, July 24, President Trump withdrew Alina Habba's nomination to be U.S. Attorney for New Jersey, and Attorney General Bondi then appointed her First Assistant in that U.S. Attorney's Office and also appointed her Acting U.S. Attorney for New Jersey for the next 210 days under the Vacancies Act, 5 U.S.C. § 3345 et seq.

I do not think it was necessary to do that. I think Interim U.S. Attorneys, whose 120-day appointments have expired without the Senate ever voting on their nominations, can be reappointed to an indefinite number of 120-day terms as Interim U.S. Attorneys by the Attorney General under 28 U.S.C. § 546 until and unless the Senate votes down their nominations and so long as they have been nominated for the office in question.

The 120-day term limit does not bar reappointment if done by district court judges. Given that cross-branch appointment of inferior officers is unconstitutional, as I will explain below, there is no reason why 28 U.S.C. § 546 ought to be read as precluding the reappointment of nominated U.S. Attorneys whom Senators do not have the votes to defeat but whose confirmations they are able to delay.

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.

The President is the nation's Prosecutor-in-Chief, with the Attorney General as his subordinate. The President has, both domestically and internationally, what the British referred to as the Monarch's Power of the Sword, in contrast to the Legislature's Power of the Purse. It is the President, himself, who swears to "take Care that the Laws be faithfully executed" using the Power of the Sword domestically. The Supreme Court held in Seila Law LLC v. Consumer Financial Protection Bureau (2020) that all of "[t]he executive Power" must be exercised by officers or employees who are removable at will by the President at any time.

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. It is also unconstitutional under the May 22, 2025, decision (on the so-called "shadow docket") in Trump v. Wilcox, which concluded that National Labor Relations Board Members and Merit Systems Protection Board Members had to be removable at will by the President, because they were exercising, in part, some portion of the President's "executive Power." Even setting aside the debate about removability of board members of supposedly independent quasi-judicial, quasi-legislative multi-member agencies, which were approved in Humphrey's Executor (1935), it has long been understood that, under the 1926 Myers v. United States precedent, all executive officers, such as a U.S. Attorney or an Interim U.S. Attorney, must be removable at will by the President or the Attorney General.

Since Interim U.S. Attorneys exercise exclusively executive power, two conclusions follow: First, 28 U.S.C. § 546(d) is unconstitutional insofar as it grants district judges the power sometimes to appoint officers who will exercise exclusively executive power. Second, Attorney General Bondi acted constitutionally when she fired the court appointed Interim U.S. Attorney.

Section 546(d) is also unconstitutional on Appointments Clause grounds for allowing a court appointed officer to exercise some portion of the President's "executive Power" in violation of Seila Law and of Trump v. Wilcox. Interim U.S. Attorneys are inferior officers whose appointments are governed by the following constitutional language:

[T]he Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Congress can delegate to a Head of a Department, like the Attorney General, the power to appoint an inferior executive branch officer to a congressionally created office, like the office of Interim U.S. Attorney. Or Congress can delegate to, for example, the Supreme Court, the power to appoint the Clerk of the Supreme Court, who is the officer of the Supreme Court of the United States responsible for overseeing filings with the court and maintaining its records, to a congressionally created office.

It is true that the text of the Inferior Officer Appointments Clause could be read as authorizing cross-branch appointments whereby judges can appoint Interim U.S. Attorneys, and the President or Attorney General Bondi could appoint the Clerk of the Supreme Court. The Clause does allow Congress to by "law" vest the appointment of inferior officer "as they think proper" in "the President alone, in the Courts of Law, or in the Heads of Departments."

It strains credulity, however, to assume that Congress could exercise its power to vest in the Courts of Law the power to appoint inferior executive branch officers, or that it could delegate to Attorney General Bondi the power to appoint inferior judicial branch officers like new Clerks of the U.S. Supreme Court.

This is an "Alice in Wonderland" absurd way to read the words "as they think proper." The far more likely meaning of those words is that Congress can delegate to the President, and not the Supreme Court, the power to hire the White House Chief of Staff or the White House Counsel who are inferior executive branch officers. Or it can delegate to the Supreme Court, and not to the President or Attorney General, the power to appoint an inferior judicial branch officer like the Clerk of the Supreme Court, or judicial employees like the nine justices' law clerks.

One might object that the President appoints Article III judges, who are judicial officers, so the Courts of Law should be able to appoint the White House Chief of Staff or the White House Counsel or Interim U.S. Attorneys who are executive inferior officers. But the President's power to appoint judges is constrained by the requirement that he must first nominate them, and the Senate must confirm them, before they can be appointed. Judges picking White House Chiefs of Staff, White House Counsels, or Interim U.S. Attorneys would not be constrained by the check of Senate confirmation, so the analogy fails.

Executive branch agencies do appoint Administrative Law judges (ALJs) who are inferior executive branch officers. But, in my opinion, that is only constitutional when a public benefit like social security disability benefits, or immigration into the U.S., or a suit for money damages against the U.S. is involved, as to which Congress has only partially waived its sovereign immunity. The disposal of public benefits in these cases is an exercise of executive power even though the ALJs who decide these cases have the prestigious but misleading title of "Judge."

The Supreme Court did uphold a court-appointed federal prosecutor in Morrison v. Olson (1988), but that case is no longer good law as to (1) its Appointments Clause holding; (2) its Removal Power holding; or (3) its cross-branch Appointments Clause holding. The Appointments Clause holding of Morrison was not followed in Edmond v. United States (1997) or in Free Enterprise Fund v. PCAOB (2010). The Removal Power holding of Morrison was not followed in Seila Law or in Trump v. Wilcox.

While the Supreme Court has not had the chance to pronounce specifically on the cross-branch Appointment of inferior officers like Interim U.S. Attorneys, it has made it clear in Seila Law and in Trump v. Wilcox that no inferior executive branch officer, who is appointed by the courts and not by the President or the Head of an executive Department, can ever exercise even a shred of the executive power. Yet executive power is the only power that court-appointed Interim U.S. Attorneys exercise. It is thus fair to conclude that the language allowing cross-branch appointment of inferior officers in Morrison is no longer good law.

Although the Supreme Court allowed the cross-branch appointment of minor inferior officers in Ex Parte Siebold (1880), in a brief casual construction, the better rule is that of Ex Parte Hennen (1839) where the Court held that,

The appointing power here designated, in the latter part of the section was no doubt intended to be exercised by the department of the government to which the officer to be appointed most appropriately belonged. The appointment of clerks of Courts properly belongs to the Courts of law; and that a clerk is one of the inferior officers contemplated by this provision in the Constitution cannot be questioned.

The rule of Ex Parte Hennen just quoted was demoted by Ex parte Siebold from the constitutional status to which Hennen meant it to apply to the status of mere guidance for Congress, though Siebold did not formally overrule Hennen. In my view, Hennen is clearly right, and Siebold is a much later and in my view erroneous construction of the constitutional text; so I think the Supreme Court should re-elevate Hennen to be the lead case on this question.

Since under Seila Law and Trump v. Wilcox, only the President or his agent the Attorney General can remove Interim U.S. Attorneys, who are not quasi-judicial or quasi-legislative officers, the rule of Hennen suggests that only the Attorney General has the power to appoint Interim U.S. Attorneys, which is what 28 U.S.C. § 546(a) says. To the extent Ex Parte Siebold suggests otherwise, it is no longer good law, as is the case with Morrison v. Olsen.

So, if the district court appointed Interim U.S. Attorney has been removed, how could Attorney General Bondi reappoint Alina Habba to ensure the running of the U.S. Attorney's office for New Jersey? In my opinion, Attorney General Bondi could have chosen to reappoint Alina Habba for another 120 days as Interim U.S. Attorney, since her initial appointment was not one to which the Senate had refused to give advice and consent. I do not think it was necessary to withdraw Habba's nomination and appoint her as Acting U.S. Attorney. All that happened to Alina Habba was that the New Jersey Senators refused to allow Alina Habba's nomination to be voted on by the full Senate. If her appointment is voted on and rejected by the Senate or at least by the Senate Judiciary Committee, her term ends immediately. But until and unless that happens 28 U.S.C. § 546(a) allows an interim re-appointment:

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.

The statute nowhere says that the same person cannot be reappointed for another 120-day term, unless the Senate has refused to advise and consent to their nomination. Refusal to advise and consent requires a vote either in committee or on the floor. Delaying a U.S. Attorney's nomination vote to run out the 120-day clock on their service as Interim U.S. Attorneys is not a "refusal" of "advise and consent."

This situation differs from the unconstitutional appointments of Robert Mueller and Jack Smith to be Special Counsel because there was no statute that created the Office of Special Counsel, which they purported to hold, nor was there a statute that authorized the Attorney General to appoint a Special Counsel when Robert Mueller and Jack Smith were appointed. The Ethics in Government Act of 1978 sunset out of existence in 1999. It was replaced by an Attorney General Order governing appointment of Special Counsel's, which Gary Lawson and I explain is unconstitutional, as Judge Aileen Cannon held in an excellent 92-page opinion. Steven G. Calabresi & Gary Lawson, Why Robert Mueller's Appointment as Special Counsel is Unlawful?, 95 Notre Dame Law Review 87 (2019).

In Alina Habba's case, and in the case of other Interim U.S. Attorneys like her, there is both (1) a statute creating the office of Interim U.S. Attorney and (2) a grant of power to the Attorney General Bondi to appoint Interim U.S. Attorneys, so long as they have not been voted down by the Senate. There was thus no need to withdraw Habba's nomination when she could instead have been appointed to another 120-day term as Interim U.S. Attorney, at least until the Senate voted and refused to advise and consent to her nomination.

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[Josh Blackman] Today in Supreme Court History: July 26, 1892

7/26/1892: Justice George Shiras Jr. takes oath.

Justice George Shiras

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