Anne Joseph O’Connell

Over at Lawfare, I examine the peculiar constitutional theory undergirding OPM's final rule on Schedule Policy/Career

Yesterday we learned that the Department of Justice is monitoring and tracking members of Congress’s searches of the Epstein files. There’s no sugar coating it: the administration is spying on lawmakers as they exercise their constitutional oversight responsibilities. 1/10

Things need to change here as we are in the midst of yet another suicide cluster -- and removing a lethal means is one thing to do. I send my love to all the teenagers in Palo Alto and especially to the trans community. I wish I could carry some of your pain. padailypost.com/2026/02/05/p...

Need to read more. I've been battling my fellow liberals today on delegation in the absence of Senate confirmed leaders (see Rubio delegating duties of the Archivist before he had to relinquish the acting title). I wish folks would consider if party labels flipped more on actings/delegation issues.

Biden and Obama relied on these sorts of delegations! Imagine the next Democratic President and a Republican Senate. Agencies need delegations to function & Democrats rely more on them. Now could Congress impose some limits? Sure. I have some proposals here. 4/

columbialawreview.org/wp-content/u...

Even in the US attorney litigation, almost all courts (not CA3) have said nonexclusive duties can be delegated down & that person can run the US attorney office (without the acting title). This accords with Federal Circuit in Arthrex (on remand from the SCt) and CA9 in Gonzales & Gonzales Bond. 3/

Archivist can delegate anything unless explicitly prohibited. 44 USC 2104 ("may delegate any of the functions ...to such officers & employees of [NARA]"). Rubio was a proper acting Archivist until recently under 5 USC 3345(a)(2). If he delegated before he left, no Vacancies Act issue. 2/

Marco Rubio out as acting head of National Archives | Federal News Network Before the end of his tenure, Rubio tapped James Byron, senior advisor to the archivist, to serve and perform the functions of archivist.

Trump 2.0 is frightening. But Rubio delegating tasks of the Archivist doesn't violate any statute. Could raise conflict concerns (since Byron is on leave from an entity affected by NARA). And it could raise appointments clause issues (is he an officer?). 1/

federalnewsnetwork.com/people/2026/...

The holding was on FVRA — but there was, as you note, a lot of discussion of delegation. The naming of Bryan to a new position doesn’t affect the delegation question, except under the Appointments Clause.

There are COI laws and regulations that should be investigated!

You are again conflating acting officials and delegation. LLM was about the former.

L.M.-M held DHS couldn't create new 1st asst job > vacancy & in dicta said 1st asst could not be named > vacancy. The latter has been taken up in US atty suits. But in most of those cases they have allowed delegation. It is a huge end run. See Arthrex (CAFC) & cdn.ca9.uscourts.gov/datastore/op...

Sorry wrong link: columbialawreview.org/wp-content/u...

Appointments Clause applies: if some duties rise to officer status, the Clause must be satisfied. I wrote about this in the attached link. Delegation is a huge workaround to FVRA. Now CA3 is charting its own path here (Giraud case). But I think SCT will reverse. columbialawreview.org/wp-content/u...

Yes. Statute allows archivist to delegate seemingly everything. An acting archivist has full authority of the archivist. If Rubio was properly serving as acting, he can delegate to folks who would not have qualified under the FVRA. Again, this is what most of the US attorney decisions say.

What is exclusive? It seems to be all be delegable!

"Except as otherwise expressly provided...,the Archivist may delegate any of the functions of the Archivist to such officers & employees of [NARA] as the Archivist may designate & may authorize such successive redelegations of such functions as the Archivist may deem to be necessary or appropriate."

As I have written, only nonexclusive stuff can be delegated. It is not clear to me if there is anything exclusive to the Archivist. I would need to know more. (For FEMA it was all seen as nonexclusive despite statutes naming the FEMA head).

That's why FEMA never had an acting at the start of Trump 2.0. The people they wanted didn't qualify so they did it by delegation instead. This is how Vanita Gupta ran DOJ Civil Rights in Obama after the FVRA time limits ran out.

Yes, if it is not exclusively delegated. Scary, yes but that's how agencies have worked. Do take a look at these district court US attorney decisions that have allowed the newly named first assistant to run the office (without the acting title, as they have found they do not qualify under the FVRA).

Is anything exclusive to the Archivist? The government has conceded in other litigation that almost nothing is non-delegable. And if the order was in place on December 4, it continues..... subject to the Appointments Clause.

Ask for the delegation document -- if it is dated before, ok. If it is not, that's a problem. I imagine they papered it. Lots of delegation orders in Trump 1.0 (and Biden and Presidents before them).

The person delegated to doesn't need to meet 3345. Look at these district court opinions on US attorneys (they are not allowed under FVRA but are allowed under delegation). FEMA has been operating entirely by delegation (Richardson/Hamilton don't qualify under 3345). Happened under Biden too!

If after Dec 4, that's a problem.

I think he can delegate anything before then that is nonexlcusive. CA3 has disagreed (on US attorneys) but all the other district courts have permitted it (first assistant is running the office). (And CAFC allowed it at PTO after Arthrex). 1/

This confuses me. During the period that the FVRA applied, Rubio can carry out *all* the functions of the job: exclusive & nonexclusive. By statute, he could delegate nonexclusive functions downward (if done in his 300 days). The question becomes whether Appts Clause permits delegation to Byron.

The initial agency responses to Schedule F in Trump's first term also showed a divide -- some agencies claimed they had no/few such positions (knowing it would harm morale, etc.). That's why I assume Schedule P/C is more top down on position selection.

This was not an NPRM -- but rather a draft specifically circulated to agencies for comment. Other agencies do sometimes comment on formal NPRMs through the traditional process: indeed, the SBA has a statutory duty to do so. But often other agencies raise concerns through OIRA.

And I think Congress could limit who can be an acting or delegate — like they did with IGs. All has to go to senior career folks in IG offices.

I think the New Mexico & CD Cal decisions may split the baby the best—no acting title but you can delegate the non exclusive functions. This all extends well beyond US Attorneys. If delegation is not allowed (and maybe it cannot be to 1 person), no agencies will function under a Dem WH & Rep Senate.

Corrected: I only skimmed (helping mom). I see 6103 as exclusive (though not just to US attys). Bigger point: NDNY & CA3 hold DOJ can't delegate rest of US atty role to 1 person. Easy workaround for DOJ (& criminal defendants conceded in CA3 argument): delegate 1 duty to someone else & rest to pick.