HR-8065-119
Ordered to be Reported (Amended) by the Yeas and Nays: 12 - 11.
Sponsored by Derek Schmidt (R-KS)
What it does
This bill would amend 28 U.S.C. 546 to remove the provision allowing federal district courts to appoint an interim U.S. Attorney if a presidential appointment has not been made within 120 days, and it clarifies that the 120-day vacancy clock restarts for a new interim appointee. It effectively eliminates the courts' backstop authority over U.S. Attorney vacancies, leaving the process entirely to the executive branch (and Senate confirmation for permanent appointments).
Who benefits
The Department of Justice and the President, who would gain sole control over filling U.S. Attorney vacancies without judicial involvement. Attorneys General seeking to install or retain preferred interim U.S. Attorneys without a district court substituting its own choice would also benefit.
Who is hurt
Federal district courts, which would lose their statutory authority to appoint an interim U.S. Attorney when the executive branch fails to act within 120 days. Communities within a district could be affected if a vacancy persists longer without a court-appointed check, and the Senate's confirmation role could be sidelined for longer periods if the executive relies on rotating interim appointees rather than nominating a permanent U.S. Attorney.
Supporters argue
Supporters argue that appointing federal prosecutors is a core executive function under the Appointments Clause and that allowing judges to select U.S. Attorneys blurs the separation of powers by giving the judiciary a role in staffing an executive law enforcement office. They contend recent controversies over district courts appointing interim U.S. Attorneys after the administration's chosen nominee was not confirmed demonstrate that judicial involvement in these appointments creates confusion and potential conflicts of interest between prosecutors and the courts they appear before.
Opponents argue
Opponents argue that the court-appointment backstop exists precisely to prevent prolonged vacancies or executive circumvention of Senate confirmation by repeatedly reappointing interim officials, and removing it could let an administration keep an unconfirmed prosecutor in place indefinitely by resetting the clock. They contend eliminating this check reduces accountability over U.S. Attorney selection and concentrates appointment power entirely within the executive branch without meaningful legislative or judicial oversight.
Constitutional context
This bill concerns the Appointments Clause (Art. II, §2, cl. 2), which allows Congress to vest appointment of "inferior officers" like U.S. Attorneys in the President, courts of law, or heads of departments; the dispute here is whether Congress should continue using its discretion to vest interim appointment power in the judiciary. Morrison v. Olson (1988) addressed related separation-of-powers questions about inferior officers and executive law enforcement functions.
Checks and balances
The executive branch (DOJ) would gain exclusive control over interim U.S. Attorney appointments, while the judiciary would lose its statutory backstop authority, and Congress retains its power to legislate further changes or restore the provision.
Historical precedent
Congress has previously adjusted 28 U.S.C. 546's interim appointment mechanism, including a 2007 amendment (following controversy over U.S. Attorney firings) that restored the 120-day judicial appointment authority after a temporary removal.