The Supreme Court had to intervene about two dozen times during President Trump’s second term, as many lower courts refused to accept that he is the president. The justices must do so again after lower courts invalidated the appointments of acting U.S. Attorneys Alina Habba of the District of New Jersey and Lindsey Halligan of the Eastern District of Virginia.
The Senate has a tradition that is more than a century old called the blue slip. Home state senators have extraordinary power: the ability to veto U.S. marshals, U.S. attorneys, and U.S. district judges. For the nominees to advance, home state senators must return a blue slip approving the nominations. Senators will never give up this power, so governments must bear the consequences. In New Jersey, left-wing Senators Cory Booker and Andy Kim have refused to authorize the appointment of Alina Habba as US attorney. Likewise, in Virginia, their fellow left-wing senators Tim Kaine and Mark Warner will not acquiesce to Lindsey Halligan’s appointment as U.S. attorney. As such, Attorney General Pam Bondi appointed Habba and Halligan to 120-day terms to serve on an interim basis. 28 USC § 546 allows. Halligan replaced another interim prosecutor, Eric Siebert, who left shortly before his 120 days were up.
Alina Habba delivers remarks before being sworn in as Interim U.S. Attorney for New Jersey in the Oval Office of the White House on March 28, 2025 in Washington, DC. Habba is a former personal lawyer for President Donald Trump. (Photo by Andrew Harnik/Getty Images) (Andrew Harnik/Getty Images)
After 120 days had passed, leftists claimed that Bondi can no longer make appointments, but only district judges. The executive branch, the argument goes, has no say at all after 120 days. This outcome would lead to a plan where left-wing senators could block President Trump’s nominees. Then courts made up of mostly left-wing judges in these blue states can install left-wing American puppet lawyers, and the executive branch has to grin and bear it, just like the blue slip process.
The 120-day limit first appeared in a statute in 1986. During the Presidents Clinton and Bush years, attorneys general made successive 120-day appointments under the statutory scheme in effect from 1986 to 2006, the same scheme as today. Still, Judge Clinton Cameron Currie of South Carolina did not consider this historical evidence convincing when it invalidated Halligan’s nomination. Halligan has filed charges against New York Attorney General Letitia James for mortgage fraud and former FBI Director James Comey for false statements to and obstruction of Congress related to the Russiagate hoax.
TRUMP NOMININES SQUEEZED BETWEEN ‘BLUE SLIPS’ AND BLUE OBSTRUCTION
These charges are invalid for the time being. Currie’s opinion drips with contempt for Halligan, given Halligan’s lack of prosecutorial experience. This issue is not relevant to the legal question. Halligan could have had three decades of prosecutorial experience, according to Currie’s analysis, and her appointment would still have violated the Constitution’s Appointments Clause. Currie also cited another irrelevant piece of evidence: that of President Trump post on social media demanding that Bondi act more quickly in prosecutions. Whether Halligan’s appointment is valid has nothing to do with that position. Its inclusion therefore serves no valid legal purpose.
Lindsey Halligan, special assistant to the president, speaks to a reporter outside the White House, Wednesday, Aug. 20, 2025, in Washington. (Jacquelyn Martin/AP)
The Appointments Clause grants the power of appointment to a President, by and with the advice and consent of the Senate, for principal officers. Congress can also require that the advice and consent process apply to inferior officers, and it did so with respect to U.S. attorneys. As such, presidents appoint and the Senate confirms U.S. attorneys. If there are vacancies, attorneys general can fill them for 120 days at a time, and a separate part of Section 546 allows district courts to make appointments after the 120 days have expired. The constitution grants department heads and courts the power to appoint inferior officials. For example, district judges appoint magistrate judges.
Section 546 does not grant the authority to appoint U.S. attorneys exclusively to district courts. According to the reading of the justices who invalidated the appointments of Habba and Halligan, the attorney general of a future president, JD Vance, could also not make a 120-day appointment. The text of Article 546 does not specify an appointment of 120 days per president. When a president’s attorney general makes a 120-day appointment, these judges absurdly prevent the future president’s attorney general from doing so in that district. District judges therefore have all the power until the Senate confirms a nominee one of these years or decades.
THESE ARE THE JUDGES WHO GO AGAINST TRUMP’S AGENDA
Fortunately, the issue is now ripe for review by the Supreme Court. This week, a Third Circuit panel ruled that Habba’s appointment was invalid. The justices would have to decide the cases together, even though the Fourth Circuit has not yet ruled on Halligan’s appeal. There is only one circuit that contains all the states that have Republican senators: the Fifth. This district court control could continue under President Vance’s terms.
The easiest way to correct the lower court’s error is if the Supreme Court rules that Section 546 allows attorneys general to make more than one 120-day appointment. Alternatively, the justices could hold that stripping the executive branch of Section 546’s appointment power with respect to its officers violates the separation of powers.
CLICK HERE TO DOWNLOAD THE FOX NEWS APP
Despite enormous criticism from Democratic politicians, the left-wing media, and academic elites, the justices have stepped in time and time again to thwart unlawful interference from lower courts. The Supreme Court’s intervention on issues ranging from the ability to fire executive branch employees to the president’s ability to revoke temporary protected status for illegal immigrants has allowed President Trump to do his job much more effectively.
Bondi, Solicitor General John Sauer and their team of great lawyers have achieved a success rate of over 90% at the Supreme Court. The justices must reinstate Habba and Halligan to preserve the separation of powers and prevent U.S. attorneys from becoming district court clerks instead of presidents.
