Anne Joseph O’Connell

Here’s the link again:

events.americanbar.org/event/a13a77...

The second is on the future of the civil service with Nick Bednar, Anne Joseph O’Connell, and Nicholas Handler.

It’s really going to be great. So join us! It’s free! For real!

Really proud of the ABA Admin Law Section for making lemonade (free conference!) out of lemons (shutdown!).

Can you help me get the word out? We are having trouble reaching government attorneys due to the shutdown.

This is 6 hours of CLE of FREE through the ABA. But you don’t have to be an attorney to sign up!

Thread of topics we will cover:

I am so so sorry.

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.

? I said nothing about timing — just that the Vacancies Act is Congress choosing alternatives permitted under the Appointments Clause for inferior offices. They could cut PAS jobs entirely if inferior. Here they do something halfway.

These are inferior offices — so Congress has chosen the President alone and the head of department options under the Constitution to staff temporarily. Actually had a Vacancies Act in 1792 and 1795.

If appellate courts affirm DNJ & DNV, there will be large effects on staffing up administrations. Another proposal if so: Amend the Vacancies Act to allow post-vacancy first assistants in the first 180 days of an Administration. That would solve a lot of the problems if those decisions are upheld.

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.

Ha! I was posting for the small handful of us who know the Act. Your message made me laugh, thank you.

But that doesn’t help the challenger’s clients. I guess if CA3 agrees, an administration will figure out one small duty not to delegate and nothing will really change.

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

Did you hear the exchange with the challengers to Habba about what Bondi could delegate to her? They seemed to concede she could do all of the criminal stuff. Couldn’t Bondi then just delegate all but some small thing and it would be ok for them?

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?

FINALLY. An exclusive duty to the AG -- cannot name inferior officers. But the key, I think, is about the US Attorney and there seems to be no exclusive duties there. We are now at the end. I am going to get a cup of Earl Grey tea and take some deep breaths.

A judge is trying to generalize from the Habba example (not good facts to be sure) to practices across all covered PAS positions under the FVRA. Unhappy with Habba enough to have it ramify it to so so much else?

If you don't like Habba, let's reform the FVRA. Delighted for certain changes. But we have used delegation across multiple administrations. And we want to limit it carefully so government can function.

Back to government on rebuttal: (1) Yes, the FVRA is a generally applicable statute (but it does NOT however apply to all PAS positions in government, not the IAF board, not independent commissions). (2) Strong argument on 3347/3348 (Arthrex). (3) Lots of examples of delegation in US atty offices.

Amicus is also shouting out @thomasberry.bsky.social's brief. Maybe I should have filed something. I do agree with the government in this case on most points though I think it could go other way on some.

Amicus up: clear on points (not the first assistant as after vacancy & prior nomination bars; and delegation not a workaround). All lawyers have done their homework.

A shoutout to @thomasberry.bsky.social 's CATO brief on the first assistant timing question. Not sure I buy that argument -- but it is a middle ground on the issue.

Back to "submits" and a pending nomination. A real question. I am grateful for it. We are back to time limits--and the 210 days after a withdrawn nomination. But the Vacancies Act does work that way. And delegation doesn't have time limits--so long as the position qualifies as an interior office.

But I see the point on the delegation point. Giraud conceded partial delegation is ok -- on the all stuff that matters presumably to their client.

I think counsel on both sides understands the Act. It's the judges.

Took 50 minutes -- but props to Judge Smith here. But let's get rid of "purpose", just look at text.

I normally have low blood pressure (95/65), not sure what it is now. But we are on a great question: can the first assistant be named after the vacancy? I think yes (OLC has long said yes). But district court & people I respect say no. Messy text that needs to be parsed.

I am screaming. The latest is the concession from the criminal defendants -- that Habba can oversee all legal proceedings but not give speeches -- through delegation. They just gave up the big stuff.

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....

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....