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.