Two appeals courts have rejected constitutional challenges to the appointment of interim U.S. Attorneys under Section 546, holding that U.S. Attorneys are inferior officers and Congress could therefore choose to vest their appointment in the Attorney General or district courts. Acting service under the Vacancies Act could raise more serious constit

While the Attorney General might be expected to defer to the President’s invocation of the Vacancies Act, courts may have different incentives. For instance, the President has the power to remove the Attorney General but not to remove judges. Judicial appointments under Section 546(d) therefore present the possibility for interbranch conflict ove

As the 2005 dispute over the U.S. Attorney in South Dakota suggests, Section 546 has sometimes given rise to disputes between the executive and judicial branches. Some have argued the judicial appointment of executive officials violates the constitutional separation of powers. Lower courts that have considered Section 546(d) have rejected separatio

Arguably, Section 546 contemplates a straightforward series of events: the Attorney General appoints an interim U.S. Attorney to serve for 120 days, and if needed, the district court then reappoints or appoints a new interim U.S. Attorney who can serve until a permanent U.S. Attorney is installed. However, there are historical exampleswhere the Att

As discussed, once the initial period of 210 or 300 days has ended, the President can extend the time for acting service by nominating someone to the vacant U.S. Attorney position. At the same time, the person who is nominated might not be able to serve as Acting U.S. Attorney. Specifically, the Vacancies Act, 5 U.S.C. § 3345(b), provides that if