If at this point you are still unpersuaded that the strongly unitary executive and related developments discussed in this series are an intolerable threat to constitutional government and the rule of law, you might want to stop reading. If you agree, however, then the question becomes what can be done to reduce or eliminate this danger?
There is no shortage of actions that can be taken in pursuit of this objective. But there is also no guarantee that any particular course of action will be successful in achieving it. This is so because the action may be difficult to accomplish (e.g., legislation which is subject to presidential veto) or may be disregarded by the executive or struck down by the Supreme Court or may prove to be impossible to sustain politically or may turn out to be ineffective to produce the desired change in behavior.
Legislation on Removals
One of the primary “anti-removal” tools identified by Professors Walker and Nielson is the statutory requirement that the president give a reason for firing a particular officer. They point out that such a requirement has been in law for the comptroller of the currency for over 160 years, and no president has ever removed a comptroller during that time. Christopher J. Walker & Aaron Nielson, Congress’s Anti-Removal Power, 76 Vanderbilt L. Rev. 1, 34-36 (2023). Furthermore, a similar statutory requirement applies to inspectors general under the Inspector General Act of 1978 and, while some presidents have nonetheless removed IGs, Walker and Nielson say that “a reason-giving requirement seems to have provided at least some measure of independence for decades.” Id. at 38.
Unfortunately, this was written before the commencement of the current administration, when President Trump fired 17 inspectors general without complying with the statutory requirement. This illustrates several problems. First, the power of these requirements are dependent on the understanding that Congress may legitimately provide certain executive offices with a measure of independence, a previously existing norm that is undermined by unitary executive theory. Second, such requirements mean little if there is no expectation that the president will attempt in good faith to comply with the law. Third, there is no assurance, despite the historical pedigree of the reason-giving requirement, that the Supreme Court would uphold it as constitutional. Professor Goldsmith argues that it is probably unconstitutional under the Court’s current doctrine. Finally, one can expect members of Congress to abandon principles of governance in favor of short term political interests, as Goldsmith illustrates by citing the tepid reaction of Senator Charles Grassley, once a fierce protector of IG independence, to Trump’s blatant violation of the law Grassley had worked to strengthen.
Maybe, however, reform should focus on the executive officer appointed by the president, rather than the president himself. Suppose that a fired officer was allowed, or indeed required, to explain in a public forum why the president had removed her from office. This could raise the cost of removal to the president and at the same time stiffen the spine of officers who would like to resist pressure from the president or the White House to take illegal or improper actions.
Walker and Nielson propose that Congress could provide such a public forum in the form of “a congressional hearing whenever the head of independent agency (or other agency official Congress so designates) is fired.” Walker & Nielson, 76 Vanderbilt L. Rev. at 53-54. They suggest this could be accomplished by a congressional rule pre-committing the House or Senate to hold such hearings or a statute mandating the same.
I think this is a promising idea, but some attention to the design of this process is required. It may not be that effective to a require a hearing every time a removal occurs. If committees decide the requirement is onerous or politically unpalatable, they will find ways around it or simply ignore it. Too many such hearings might become routine and lose public attention.
A better idea might be to establish a new committee focused on questions of agency independence, executive wrongdoing and improper removals. (It could also develop an expertise in executive privilege and, assuming it is a House committee, be given primary responsibility for investigating impeachable offenses). It would not need to be limited to removals from a select number of offices but could investigate any potentially improper removal. It would be crucial to assure the cooperation of removed officers by, for example, requiring all Senate nominees to promise such cooperation as a condition of confirmation. Congress could also use the subpoena power to compel cooperation, but executive branch lawyers would not doubt argue that much of the relevant information was protected by executive privilege.
Another way that Congress could approach this would be to establish a separate tribunal to hear claims arising from the firing of executive officers. It could, for example, allow officers fired without cause to receive the pay they would have earned for serving the remainder of their term. This might appear at first glance to conflict with unitary executive decisions like Slaughter, but our hypothetical law does not restrict the president’s power to remove anyone. It merely provides compensation to those removed through no fault of their own. To be sure, there is no guarantee the Supreme Court would not find this law unconstitutionally burdens the president’s removal power, but that would require a significant extension of existing precedent.
Perhaps a bigger problem with the law might be the need to establish an independent tribunal to adjudicate claims by removed officers. The Supreme Court has already signaled that adjudicatory executive tribunals like the Merit System Protection Board (MSPB) likely cannot be shielded against at-will presidential removal. See Trump v. Wilcox, 145 S.Ct. 1415 (2025). Since the MSPB cannot be independent, there is no reason for it to continue to exist. Congress should abolish it and transfer its functions (which primarily consist of adjudicating appeals by federal civil servants of adverse personnel actions) to an independent tribunal. The question then becomes whether those functions must be transferred to an Article III court or whether Congress can establish an independent non-Article III court (a question left open in Slaughter). In either event, Congress could assign the tribunal the responsibility for adjudicating removals without cause as well as the caseload formerly handled by the MSPB.
This brings us to the broader question of what offices Congress can establish outside the scope of the Slaughter decision. The Court noted three categories of offices that are excluded. First, “not all offices created by Congress necessarily come with executive or even sovereign power attached.” Slaughter Maj. Op. at 27. Thus, powers “’of an investigative and informative nature’ . . . may ‘be regarded as merely in aid of the legislative function of Congress.’” Id. (quoting Buckley v. Valeo, 424 U.S.1, 137-38 (1976)). It would seem, therefore, that Congress could adopt Prakash’s proposal to “create a congressional entity whose sole mission would be to produce annual reports that highlight instances where executive officials have overstepped their legal authority.” The Living Presidency at 268.
More immediately, this exception supports the constitutionality of H.R. 6028, the Legislative Branch Agencies Clarification Act, which passed the House on June 8, 2026 and which seeks to ensure that both the Library of Congress and the Government Publishing Office are outside the president’s control. Under this legislation both the librarian of Congress and the GPO director would be appointed (and removable) by a bipartisan congressional commission, rather than by the president. Assuming that neither office exercises executive power (which assumption would be challenged by OLC in the case of the GPO director), Slaughter would seem to permit insulating these officers from presidential removal, although the method of appointment could raise a separate constitutional issue.
Second, the Court “left open the possibility that some functions traditionally handled outside the Executive Branch may not be encompassed by Myers’s general rule. Slaughter Maj. Op. at 27. It explained that “one example” of “such a unique role is the Federal Reserve,” id. at 27-28, which is confirmed in the Cook case. The Court notably does not rule out other examples, although it provides scant guidance on how to identify them.
One possibility is the comptroller general, whom the Court has previously found to be a legislative officer insulated from presidential removal. See Bowsher v. Synar, 478 U.S. 714 (1986). The comptroller general might also be protected by the first exception on the ground that the office exercises no executive power (or no significant executive power). But because this conclusion is far from self evident under the Court’s more recent unitary executive cases, the second Slaughter exception is a possible backup.
Finally, the Court acknowledged a possible third category of exception, which it unhelpfully identified as “officials not before us.” Slaughter Maj. Op. at 28. Here again it favored us with one example, which (as already alluded to) was “the permissibility of tenure protections for the judges of ‘non-Article III courts,’ such as the Tax Court and the Court of Federal Claims.” Id. This question, which the Court “leaves for another day,” presents Congress with a dilemma in attempting to structure any reform of the administrative state. Not only does it not know whether it can establish an independent non-Article III tribunal to handle the adjudicatory functions of previously independent agencies like the MSPB, the FTC or the Securities and Exchange Commission (SEC), but it has to worry that existing tribunals like the Tax Court could lose their independence.
Perhaps Congress could consider uniform non-Article III court legislation that provides a backup in the event the Supreme Court decides these tribunals cannot constitutionally be independent. For example, the decisions of these tribunals could be advisory only; Congress would have to pass legislation to confirm their decisions. Or the cases of these tribunals could be sent to a special Article III court for final decision. (Perhaps the decisions of that court could be appealable directly to the Supreme Court, which would serve it right.).
One issue not discussed in Slaughter is the removal of inferior officers who are not appointed by the president. Under the Appointments Clause, “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” U.S. const., art. II, § 2, cl. 2.
Long before Myers, the Supreme Court had explained that, whatever might be the limits of Congress’s power to restrict the removal of officers appointed with advice and consent, they had no bearing on the removal of inferior officers appointed by the heads of department:
We have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of departments, it may limit and restrict the power of removal as it deems best for the public interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers so appointed.
United States v. Perkins, 116 U.S. 483, 485 (1886); see also Ex Parte Hennen, 38 U.S. 230, 259-60 (1839) (noting that where Congress has given to the head of department the power to appoint clerks and other inferior officers, and the statute is silent on removal, the power of removal is implicitly in the head of department and “the President has certainly no power to remove”).
In Myers, the Court did not disturb this precedent. Rather it reaffirmed Congress could limit the removal of inferior executive officers if it vested the power of appointment in the heads of department. See Myers, 272 U.S. at 162-63. Thus, it emphasized that its holding in no way endangered the merit system established by the civil service laws because these cover inferior officers appointed by the heads of department. Id. at 173-74; see also Morrison v. Olson, 487 U.S. 654, 687 n.27 (1986) (noting that Myers expressly distinguished the case of inferior officers appointed by the heads of department, where “we saw no specific constitutional impediment to congressionally imposed restrictions of the President’s removal powers”).
The unitarians, however, have never let settled law stand in the way of implementing their theory of government. Professors Prakash and Calabresi have long maintained that the president has the power to remove inferior executive officers even if Congress has vested their appointment in the heads of department (or the courts of law). Calabresi & Prakash, 104 Yale L. J. at 596-98; but see Bamzai & Prakash, 136 Harv. L. Rev. at 1830 n.536 (Bamzai not yet convinced that the president has this power).
The language and reasoning of some recent unitary executive cases cast doubt on whether Congress can prohibit the president from removing inferior executive officers appointed by the heads of department. For example, the Court has suggested Congress can only restrict removal “for inferior officers with limited duties and no policymaking or administrative authority,” Seila Law v. CFPB, 591 U.S. 197, 218 (2020), which appears far more limited that all inferior officers appointed by the heads of department. In Slaughter, moreover, the Court states definitively: “Subordinates who exercise the President’s power are removable by him. Then, and only then, can they remain accountable to the President, and the President to the people. Slaughter Maj. Op. at 36.
Taken literally, this statement would go beyond even Justice Scalia’s Morrison v. Olson dissent, where he denied that the Constitution required the president have plenary power to remove inferior officers so long as they were removable for cause by the principal officers who appointed them. Morrison, 487 U.S. at 724 n.2 (Scalia, J., dissenting). Perhaps the Slaughter Court did not intend to go so far; it is noteworthy that Justice Gorsuch describes the holding of the case as “the President must have the ability to remove principal officers who exercise executive power in his name.” Gorsuch Concurrence at 1.
In any event, the current Court has never directly addressed this question; to my knowledge, no administration has argued that the president has a constitutional power to remove inferior officers he did not appoint.
Until, that is, the current administration. In at least two instances, President Trump has purported to remove officers he did not appoint. In one case he purported to remove the chief executive officer of the Inter-American Foundation, a government corporation run by a board of directors appointed by the president with the advice and consent of the Senate. Because the chief executive officer was appointed by the board, not the president, a divided D.C. Circuit found this removal was likely invalid. See Aviel v. Gor, No 25-5105 (D.C. Cir. June 5, 2025). Judge Rao dissented, finding that the president has an inherent constitutional power to remove all executive officers, at least if not explicitly forbidden by statute. The district court subsequently entered a final order finding the removal unlawful, Aviel v. Gor, 2025 WL 2374618 (D.D.C. Aug. 14, 2025), which the government did not further appeal.
A second attempted removal involved the register of copyrights, Shira Perlmutter, who serves in the Library of Congress and is appointed by the librarian, who herself is appointed by the president with the advice and consent of the Senate. At the start of the second Trump administration, the librarian of Congress was Carla Hayden, who had been appointed by President Obama in 2016 for a 10-year term. On March 8, 2025, Trump removed Hayden from office. Because the statute does not expressly place any limitation on the president’s power to remove, Hayden’s removal has not been challenged in court.
However, that cannot be said of two other related actions. First, after removing Hayden, Trump designated Todd Blanche, then the deputy attorney general, as the acting librarian pursuant to the Federal Vacancies Reform Act (FVRA). However, the D.C. Circuit found that this action was likely unlawful because the FVRA applies only to “executive agencies” as defined in the statute and the Library of Congress, a legislative agency, does not fit within that definition. See Perlmutter v. Blanche, No. 25-5285, slip op. at 9-12 (D.C. Cir. Sept. 10, 2025). The Library of Congress itself, with tacit congressional backing, has refused to recognize Blanche’s designation and has instead operated since Hayden’s removal under the leadership of the deputy librarian, Robert Newlen. See id., slip op. at 4.
Second, two days after removing Hayden, Trump ordered Perlmutter’s removal as register. Although no reason for this removal has been formally provided, it is alleged that Trump decided to remove her because he was displeased with the substance of a report on artificial intelligence that she prepared pursuant to her statutory duty to conduct studies and advise Congress on issues related to copyright. To my knowledge this allegation has not been denied by the administration.
The D.C. Circuit found that Perlmutter’s removal was also likely invalid. If Blanche was not validly appointed as acting librarian, then Blanche had no authority to remove her. Since the president was not the appointing authority, he had no authority to remove her directly (a proposition the government did not dispute at this stage). See Perlmutter, slip op. at 9-10. Finally, the court found that Perlmutter’s removal would cause irreparable harm, relying in large part on the separation of powers implications of the president attempting to remove a legislative branch official. See Perlmutter, slip op. at 15 (“The President’s attempt to reach into the Legislative Branch to fire an official that he has no statutory authority to either appoint or remove, and to impeded Congress’s ability to carry out an enumerated constitutional duty, presents a ‘genuinely extraordinary situation’ . . . that threatens irreparable harm to the constitutional structure of our government.”) (citation omitted).
Based on Perlmutter’s likelihood of success on the merits and her showing of irreparable harm, the D.C. Circuit granted an injunction pending appeal. (Judge Walker dissented as to the grant of the injunction, but he did not contend that Perlmutter’s removal was lawful.) Perlmutter was therefore permitted to remain in her position as register of copyrights.
The solicitor general sought a stay of this injunction from the Supreme Court. The government argued that (1) both the librarian and register are executive, not legislative, officers because they are responsible for rulemaking, administrative adjudication, and enforcement of copyright law; (2) the librarian must be an executive officer because a “head of department” entitled to appoint inferior officers, such as the register, must be in the executive branch; (3) the FVRA should therefore be interpreted to apply to the Library of Congress as an executive agency; and (4) alternatively, if the president lacks the power to designate an acting librarian under the FVRA, he must have the constitutional power to remove the register.
At first glance, the argument that the president has the constitutional power to remove the register only if he lacks the power to appoint an acting librarian seems much narrower than the Prakash view that the president must be able to remove all inferior officers. However, the government’s position seems to be both that the president must be able to appoint an acting officer to fill the vacancy in the principal office and that the principal officer must be free to remove the inferior officer at will. While this position is still narrower than Prakash’s, it violates the traditional understanding that inferior officers appointed by the heads of department can be protected against removal without cause. If accepted, it threatens the existence of the civil service merit system.
Another significant issue in the Perlmutter case is whether all “heads of department” as used in the Appointments Clause necessarily serve in the executive branch. Here I would note that the Opinions Clause (art. II, § 2, cl. 2) refers to “the principal Officer in each of the executive Departments,” while the Appointments Clause refers to the “Heads of Departments,” not to the “Heads of executive Departments.” Be that as it may, a Supreme Court decision on this question could either expand or contract Congress’s flexibility with regard to structuring government functions.
Here it should be noted that the Court denied, without recorded dissent, the government’s application for a stay of the injunction in the Perlmutter case. Lest one get too optimistic, though, its order cautions that “[t]he denial of the application is not a ruling on the merits of the legal issues presented in the litigation.”
Legislation on Vacancies
As the Perlmutter case suggests, the president’s removal power is closely tied to his power to fill vacancies. If the president can remove an officer but not replace her (or if his options for replacement are extremely limited), the cost/benefit calculation of removal may change dramatically. Thus, Professors Walker and Nielson identify Congress’s ability to eliminate “presidential escape hatches from the Appointments Clause” as a key anti-removal power. 76 Vanderbilt L. Rev. at 9.
The question of the president’s authority to fill vacancies is, for the most part, a statutory one. (In one of its few acts of institutional assertiveness, Congress has successfully blocked use of the president’s constitutional authority under the Recess Appointments Clause since the Supreme Court’s decision in NLRB v. Noel Canning, 573 U.S. 513 (2014)). The relevant statute in most cases is the FVRA, which, due to overly generous terms, poor drafting and executive/judicial interpretation, gives the president an unfortunate amount of leeway in filing vacancies.
In theory, the FVRA is supposed to limit both who can serve as an acting officer and how long that individual can serve. The objective of the law is to allow government functions to continue without disruption when a vacancy arises while also incentivizing the president to submit a nomination to the Senate to fill the vacancy in a timely manner.
In practice, the FVRA is implemented in such a fashion as often to allow the president to circumvent the advice and consent process altogether. As Trump explained in his first term, “I like acting [officers]. It gives me more flexibility.” In other words, who needs that annoying Senate nosing around in the affairs of the unitary executive?
Although the FVRA limits the time for which an acting officer can serve, the time limits are quite generous. An acting officer can serve for 210 days from the date of the vacancy, plus the period of time during which a nomination to fill the vacancy is pending, plus another 210 days after the nomination is returned to the president, then for the period during which a second nomination may be pending, plus another 210 days after that nomination is returned. Thus, an acting officer can conceivably serve for more than two and a half years, which is not very “temporary” in the context of a four-year administration.
Moreover, there are a number of office-specific statutes which allow an acting officer to serve without regard to the time limits of the FVRA. As Eric Columbus has explained in Lawfare, such statutory provisions allowed Julie Su to serve indefinitely as the acting secretary of labor in the Biden administration and would have allowed Todd Blanche to do the same in the second Trump administration had he not been confirmed by the Senate.
Another problem with the FVRA is its breadth with regard to the president’s choice of acting officers. The default rule is that the first assistant to the office becomes the acting officer when a vacancy in the office occurs. But the president may instead direct another official to assume the acting role if that official is (1) a senior officer or employee of the same executive agency and served in that agency for at least ninety days of the year preceding the vacancy or (2) a Senate-confirmed officer of any agency. The category of Senate-confirmed officers alone, Thomas Berry of the Cato Institute points out, could encompass as many as 1300 individuals.
The abusive potential of this range of choice was illustrated when Trump named William Pulte, who had been confirmed as the director of the Federal Housing Finance Agency, to serve as the acting director of national intelligence, even though Pulte had no national security or intelligence experience or any other qualifications to serve as the head of the intelligence community. As Berry argues, it makes no sense to allow an official like Pulte to serve in an acting capacity just because the Senate has confirmed him to serve in a completely unrelated office. This is particularly true when the vacancy has arisen in an office like the director of national intelligence, which by statute mandates qualifications (“extensive national security expertise”) the acting officer lacks.
The executive branch has sought to broaden the pool of potential acting officers even further by contending that a first assistant can assume the acting role even if she was appointed after the vacancy arose. Initially OLC read the statute to apply only to first assistants who were already serving at the time of the vacancy. However, in a 2001 opinion, OLC changed its interpretation so that the FVRA applied even to first assistants appointed after the occurrence of the vacancy. This allowed Phil Perry, husband of Liz Cheney and therefore the son-in-law of the then-vice president, to become acting associate attorney general. (GAO, without any legal analysis or explanation, inexplicably concurred in OLC’s change of interpretation).
The effect of this OLC interpretation is to allow the executive branch to circumvent the FVRA’s limitations on who can serve as acting officers by selecting individuals who are neither Senate-confirmed nor senior agency officials who had spent at least 90 days of the preceding year in service of the agency in question. A number of courts have rejected this OLC interpretation, partially on the grounds that it would allow the executive to undermine the limitations of the FVRA. See, e.g., In re Grand Jury Subpoenas, No. 26-156 (2d Cir. Aug. 21, 2026); United States v. Jackson, Nos. 25-6214, 25-6470 (9th Cir. Aug. 17, 2026), petition for cert. filed, No. 26-304 (Sept. 8, 2026); United States v. Giraud, 160 F.4th 390, 400 (3d Cir. 2025).
Another loophole in the FVRA is the widespread use of “delegable duties” to evade the requirements of the FVRA. The FVRA’s enforcement provisions allow courts to invalidate the exercise of powers that can be performed only by the holder of the now-vacant office. If the duty in question is delegable, it can be performed by any agency official without fear of invalidation. This has enabled the executive branch to create a class of de facto acting officials who have been delegated most or all the functions of the vacant office and yet do not have to comply with the time limits and other requirements of the FVRA. As Berry testified to a Senate committee in 2022, “[t]hese pseudo-actings have all the same power as FVRA-compliant acting officers, but with none of the tenure or qualification restrictions.”
In the Jackson case, the government is seeking certiorari on two questions: (1) whether a person who becomes the first assistant after a vacancy arises is eligible to be the acting officer under the FVRA (5 U.S.C. §3345(a)(1)); and (2) whether Section 3347(a) of the FVRA prohibits a person who is not an acting officer under Section 3345(a) from being delegated all of the duties of a vacant office that may be delegated to others and that are not exclusive to the vacant office.” If the Supreme Court rules in favor of the government on either or both of these issues, it will open the door to greater abuse of the FVRA in the future. But even if it does not do so, there needs to be far tighter limitations on the executive’s ability to operate the government through acting officials.
For one thing, there ought to be different rules that apply if the vacancy is created by the president firing the officer in question. If the president chooses to fire an incumbent officer, he is not in the same situation as if he is caught unawares by the death or resignation of the incumbent. Except in perhaps some extraordinary circumstances, he will be able to plan for the vacancy in advance. If he fires an officer when the Senate adjourned for a substantial period or if he is not prepared to nominate a replacement immediately upon the dismissal of the incumbent, these are problems of his own making. The law should not incentivize these actions by giving him wide flexibility to choose an acting officer in place of the one confirmed by the Senate.
In an ideal world, the president would have little or no flexibility to designate an acting officer if the vacancy arose as the result of his own action. Either the office and its functions would remain dormant until the Senate confirmed a successor, or the president would be required to choose someone whom the Senate had determined in advance was suitable to serve as an acting officer. For example, the Senate could designate at the time of confirmation which officers are qualified to serve in an acting capacity (perhaps those who receive a certain level of bipartisan support).
It is worth mentioning that there is an open question whether the FVRA currently applies to vacancies created by removal at all. The statute applies to vacancies created when a covered officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” 5 U.S.C. §3345. Noticeably absent from that list of causes is presidential removal, and one federal district court has asserted in passing that the statute does not cover removal (see U.S. v. Valencia). If the courts should hold that the FVRA does to apply to removals, Congress would have enhanced leverage to amend the statute to promote the objectives suggested above.
Many of the cases currently in the courts, including Jackson, involve vacancies in the offices of U.S. attorneys. U.S. attorneys are appointed for four-year terms by the president with the advice and consent of the Senate. As we have discussed before, there is an office-specific statutory scheme, 28 U.S.C. § 546, which applies to a vacancy in the office of a U.S. attorney. When such an office becomes vacant, the attorney general is authorized, pursuant to § 546(a), to make an interim appointment for a period of 120 days. There are no limitations on whom the attorney general may appoint, except that it cannot be someone the Senate “refused to confirm” to that office.
When the 120-day appointment expires, under § 546(d) “the district court for such district may appoint a United States attorney to serve until the vacancy is filled.” In the past district courts have usually reappointed the interim U.S. attorney whom the attorney general had selected, but the controversial selections and actions of the Trump administration have made that practice less routine. In a number of instances, the district court has appointed someone other than the incumbent previously appointed by the attorney general. In many of those cases, the administration responded by removing (or purporting to remove) the court-appointed U.S. attorney from office. These removals raise several issues: (1) can the president remove an inferior officer whom he did not appoint (and who was appointed by a different branch of government); (2) can the attorney general appoint a new interim U.S. attorney once the court-appointed U.S. attorney is removed; and (3) is the FVRA available for the vacancy created by the president’s removal of the court-appointed U.S. attorney.
For example, in March 2025 the attorney general appointed Alina Habba as the interim U.S. attorney for the District of New Jersey, using the authority provided by Section 546(a). Habba had few apparent qualifications other than being President Trump’s former personal attorney, and her performance in office was, to put it mildly, unimpressive. See Jonathan S. Ross, Tenuous Appointments: The President’s Claimed Power to Remove Court-Appointed Interim United States Attorneys, 91 Brooklyn L. Rev. 855, 856 & nn. 6-9 (2026). In July 2025 the judges of the District issued an order that, upon expiration of Habba’s 120-day term, Desiree Leigh Grace, a career prosecutor and first assistant in the U.S. attorney’s office, would be appointed interim U.S. attorney pursuant to Section 545(d). The Trump administration reacted by immediately dismissing Grace from federal service and appointing Habba as the first assistant to the office. Habba concurrently resigned as interim U.S. attorney (the day before her term would have expired).
The question whether the president could fire an interim U.S. attorney appointed by the district court was not resolved in the Habba case. (Eventually DOJ and the judges of the District of New Jersey agreed on a new judicial appointment as U.S. attorney, and Habba moved on to bigger if not necessarily better things). Nor is the issue presented in the Jackson case currently pending before the Court. However, one district court has recently held that the president lacks the power to fire a court-appointed U.S. attorney. See Rogoff v Trump, No. 2:26-CV-02566-SAB (W.D. Wash. Oct. 1, 2026). Some scholars have reached the same conclusion. See Ross, 91 Brooklyn L. Rev. at 886-93. As Professor Ross acknowledges, though, there is probably no practical way in which the judiciary could force the executive branch to accept the exercise of power by a court-appointed U.S. attorney if it is unalterably opposed to doing so. See id. at 893-97. Moreover, it seems unlikely the Supreme Court would countenance such judicial interference in the activities of the executive branch, which would be in considerable tension with the theory of the unitary executive.
Interbranch Appointments
There is also an open question whether the Supreme Court would uphold the constitutionality of interbranch appointments like those provided for by Section 546(d). To be sure, the Appointments Clause expressly authorizes Congress to “vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” U.S. const., art. II, § 2, cl. 2. Nothing in this language suggests that Congress is prohibited from vesting the appointment of inferior executive officers in the courts. On the contrary, “the inclusion of ‘as they think proper’ seems clearly to give Congress significant discretion to determine whether it is ‘proper’ to vest the appointment of . . . executive officials in the ‘courts of Law.’” Morrison v. Olson, 487 U.S. 654,673 (1988); see also Ex Parte Siebold, 100 U.S. 371, 397-98 (1880).
Nevertheless, the idea of interbranch appointments offends the sensibilities of unitarians, and Justices Thomas and Alito have expressed qualms about the constitutionality of such appointments. See Kennedy v. Braidwood Mgmt., Inc., 606 U.S. 796 n.2 (2025) (Thomas, J., dissenting). One might also wonder whether the following language from Chief Justice Roberts portends a problem for judicial appointments of executive officers: “Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to power, neither Congress nor the courts may saddle him with those with whom he cannot work.” Slaughter Maj. Op. at 36 (emphasis in original). While this language might be limited to principal officers, one could easily imagine the Court expanding it to reject judicial appointment of inferior executive officers on the ground that this might force upon the president those with whom he “cannot work.”
Moreover, even assuming there is no blanket prohibition on judicial appointment of executive officers, the Court suggested in both Morrison and Siebold that there might be instances in which such appointment reflected “incongruity” with separation of powers principles. Exactly what that means is somewhat vague, which leaves the Court with a lot of room to strike down interbranch appointments it does not like.
Professor Squitieri has posted a draft article which has some helpful suggestions for Congress in designing interbranch appointments that can survive judicial review. See generally Chad Squitieri, The Constitutionality of Inter-Branch Appointments, 80 Vand. L. Rev. (forthcoming). He argues that interbranch appointments are generally constitutional, but that provisions which limit executive branch supervision, control and removal of court-appointed executive officers would be constitutionally problematic.
Applying this thinking to appointment of U.S. attorneys, Congress should be able to provide that the courts appoint interim (or even regular) U.S. attorneys, but it would have to ensure that they can be supervised and controlled by the attorney general. Clearly someone has to supervise them (otherwise they would not be “inferior” officers) and requiring the courts to provide such supervision would presumably reflect the kind of “incongruity” the Court would reject.
The question then becomes who can remove them. Arguably it would be sufficient for the attorney general to be able to provide them with supervision and direction, while allowing the courts the ultimate decision on whether to remove them. But that argument likely would not fly with the current Supreme Court. A second possibility would be that the attorney general could remove them, but only for cause (which would include the failure to follow direction). This seems perfectly logical to me, but the Court is deeply skeptical of the adequacy of “for cause” removal protections. Therefore, it is possible that the current Court would insist that either the president or the attorney general (or both) have the power to remove without cause.
At first blush, this would seem to defeat the purpose of having judicial appointments in the first place. As Squitieri notes, “[i]n a world where the Supreme Court now recognizes that the President has enormous influence over administrative agencies, reaffirming the constitutionality of inter-branch appointments can help offer a constitutionally permissible check on presidential power by making room for courts (rather than the President) to appoint the administrative law judges, prosecutors, and other executive branch officers who are otherwise supervised by the President.” Squitieri, Inter-Branch Appointments, at 5. But if the appointed officers can be immediately removed without cause, this check would seem to be substantially undermined.
Of course, a lot depends on what happens after the officer is removed. If the executive can continue to operate the office, whether through an acting officer under the FVRA or by some other means, then there is little incentive for the executive to keep the court-appointed officer in place. But if Congress were to provide that a U.S. attorney’s office would lose all authority to act until such time that either a court-appointed or Senate-confirmed U.S. attorney took office, the incentives would change. Or, if that were thought too draconian, Congress could provide criminal and civil litigants against the government with additional rights when a U.S. attorney’s office lacked a court-appointed or Senate-confirmed leader. For example, it could allow defendants to obtain discovery into whether the government was acting out of political bias or favoritism in bringing actions against them. Or it could provide that the presumption of regularity would not apply to acts of the U.S. attorney’s office during this period.
Another area of congressional concern should be protecting against the threat posed by the unitary executive to the autonomy and security of the other branches. We have already mentioned efforts to ensure that Congress can receive assistance from legislative branch agencies like the Library of Congress without executive interference. The judiciary is likewise dependent on agencies that could be vulnerable to such interference. In particular, it relies on the United States Marshal Service (USMS) to effectuate its orders and protect its security.
Currently, the USMS is located within the DOJ and is accountable to the attorney general; it leadership is appointed by the president with the advice and consent of the Senate. It performs significant functions, such as executing federal warrants, managing asset forfeitures, and tracking down fugitives, which the Supreme Court would almost certainly view as “heartland” executive activity (or at least would in the case of a typical law enforcement agency). Cf. Emile Katz, Grand Unified (Separation of Powers) Theory: Examining the United States Marshals, 42 Pace L. Rev. 322, 365 (2022) (“[T]he executive branch is statutorily authorized to use, and does use, marshals for law enforcement purposes.”).
On the other hand, the USMS is different from ordinary law enforcement agencies in at least two ways. First, its statutory mission is explicitly focused on its assistance to the federal courts. See 28 U.S.C. § 566 (a) (“It is the primary role and mission of the [USMS] to provide for the security and to obey, execute, and enforce all orders of the United States District Courts, the United States Courts of Appeals, the Court of International Trade, and the United States Tax Court, as provided by law.”). Second, the marshal service has a long and unique connection to the federal courts and, in practice, the marshals act more like federal judicial officers than executive officers. See Katz, 42 Pace L. Rev. at 336-39, 341-50; id. at 350 (“[T]he marshals have historically been independent of the executive branch and largely subordinate to the judiciary.”).
The attorney general’s influence over the marshals increased with the reorganization that established the USMS in 1969. As GAO explained in a 1982 report, prior to that time the attorney general, though formally vested with supervisory authority over the marshals, did not actively exercise control. See Report by the Comptroller General, U.S. Marshals’ Dilemma: Serving Two Branches of Government i-ii (1982). With the establishment of USMS, however, the attorney general began to rely on the marshals to perform ordinary law enforcement functions, creating a dual executive and judicial authority over the marshals. See id. at 10-11.
Until recently, the concerns presented by this arrangement had to do with the potential diversion of resources away from USMS’s primary mission of serving the federal courts. This was the focus of GAO’s 1982 report. GAO was not worried that the attorney general or president would directly interfere with the USMS’s duties to the judiciary, and it noted flatly that “marshals are subject to the direct of all judges in their districts.” Id. at 17.
The defiance of the current administration in the face of federal court orders, however, raises the possibility that the executive might attempt to countermand judicial orders to the USMS. As a legal matter, this would raise a question whether the USMS is bound to follow court orders even in the face of a contrary order from the president or the attorney general. Here it is worth noting that the father of unitary executive theory himself once wrote that “as between a court directing the action of a marshal and a contrary order of the President, the marshal is bound by law to follow the court’s direction.” William Howard Taft, Our Chief Magistrate and his Powers 126 (1915).
As a practical matter, however, the president can remove the director of the USMS as well as the US marshal for each judicial district. Therefore, he can effectively coerce compliance with his orders, regardless of whether he has the lawful authority to demand such compliance.
One way to address this problem would be to provide for each U.S. district court to appoint the marshal of that district, just as the law currently allows for judicial appointment of interim U.S. attorneys. Such a statute would be constitutionally less problematic because of the inherently judicial nature of the USMS’s functions. If these were viewed as interbranch appointments, there would be no arguable incongruity due to the close connection between the marshals and the judicial branch. Alternatively, the marshals could be transferred entirely to the judicial branch, and the district courts could be responsible for supervising and removing them. However, the latter arrangement could be struck down if the courts viewed the marshals as exercising substantial executive functions.
A somewhat different solution is proposed by the Maintaining Authority and Restoring Security to Halt the Abuse of Law Act (MARSHALS Act), which has been introduced in the House (H.R. 3607) and the Senate (S. 1873). These bills would establish a U.S. Marshals Board, modeled on the U.S. Capitol Police Board, which would oversee the USMS. The U.S. Marshals Board would consist of the chief justice and the members of the Judicial Conference. The director of the USMS and the marshals of each district would be appointed (and removable) by the chief justice in consultation with the board. The bills would not prohibit the USMS from performing non-judicial law enforcement activities, but they would require that these functions be performed at the request of the attorney general with the consent of the director of the USMS.
Whether such a reorganization of the USMS would be upheld by the Supreme Court is a matter of speculation. Although the Court is likely to be less concerned about potential judicial aggrandizement than congressional aggrandizement, it may be reluctant to have the judiciary involved in overseeing law enforcement type activities.
Non-Statutory Remedies
With the exception of hearings on improper removals, the discussion thus far has focused on reforms that would require legislation. This means assembling coalitions large enough to overcome all the veto points in the legislative process, including an almost certain veto by the current president (and entirely possible vetoes by future presidents). This is a difficult hill to climb, even in the most favorable of circumstances. And, as we have seen, many of the proposed reforms face uncertain prospects in the courts.
It is therefore wise to consider additional remedies that do not require bicameral passage and presentment. These fall into three broad categories: (1) unicameral actions; (2) impeachment; and (3) constitutional amendments.
Unicameral Actions
Oversight and Investigations. Each house can use its powers of oversight and investigation to expose executive branch crime and wrongdoing. It can seek to force executive officers to explain a wide range of abusive and illegal acts taken by the administration. It can explore the decisionmaking process for controversial actions and hold the relevant officials accountable. It can expose corrupt deals related to pardons, contracts and other government favors.
To be sure, there are longstanding difficulties in compelling the executive branch to provide information to Congress, and, as we have seen, the unitary executive exacerbates these in some respects. Nonetheless, Congress can do a significant amount of its oversight work without compulsory process. In the case of the second Trump administration, for example, Congress could hold blockbuster hearings based solely on publicly available information. Its biggest challenge might be just to organize and present all the information without overwhelming or boring the public.
Congress can also gather a great deal of information without the use of compulsory process. There are many witnesses who will want to cooperate with Congress and are outside the control of the executive branch. In the case of the current administration, these might include individuals harmed by immigration enforcement policies, state officials who have faced interference with their administration of election law, targets of the administration’s retribution (such as law firms and universities), former federal officials who were fired by the administration, victims of the criminals pardoned by the president, and many others.
In addition, Congress will undoubtedly be approached by many whistleblowers who will need its protection from executive branch retaliation. One imagines, for example, that there are a lot of people at the Pentagon who have information they would like to share about Secretary Hegseth’s tenure at the Department of “War,” particularly if Hegseth should depart in the coming months. Among other things, they might be able to shed light on who ordered the Starshield restrictions on Ukraine, a matter the Pentagon inspector general refuses to investigate. Congress should devote some resources to ensuring that whistleblowers are protected to the maximum extent possible.
Another question for each chamber to consider is whether immunity should be more liberally granted than it has in the past. Historically Congress has been extremely reluctant to exercise its immunity power under 18 U.S.C. § 6005 out of fear that it would be impossible to prosecute witnesses for any criminal activity related to their testimony. However, given the thoroughgoing politicization of DOJ, immunizing witnesses from potentially vindictive prosecutions may be more of a benefit than a cost. Failing to immunize cooperative witnesses would seem to be particularly unfair given that the president is likely to pardon those who remain loyal to him (and therefore refuse to cooperate with Congress).
Granting immunity also could be a significant incentive for many witnesses to come forward. There are undoubtedly many lower level officials in the executive branch who believe they have potential criminal exposure for acts they have taken, perhaps under protest, in the current administration. They will be freer to describe their activities if they do not have to worry about criminal exposure.
Of course, Congress will not be able to rely solely on cooperative witnesses. It will undoubtedly want to use its compulsory process when other methods are unavailing. Unfortunately, the primary method that Congress has relied upon for the last century to enforce its subpoenas—referral for criminal contempt under 2 U.S.C. § 194—now appears to be fundamentally broken. The executive branch has long taken the position that it will not prosecute current or former officers/employees who assert official privilege at the president’s direction. A recent OLC opinion has extended the ambit of executive privilege to cover even communications with private individuals who confidentially advise the president or his direct advisers. It is safe to say that the executive will not prosecute such private individuals either.
Indeed, Congress cannot assume anyone will be prosecuted for contempt of Congress, at least if the administration does not have a political interest in doing so. As I noted a few weeks ago, DOJ has not taken action to prosecute either Ralph de la Torre or Leon Black, though neither case involves a claim of official privilege and both were referred to the U.S. attorney by unanimous consent in the Senate and House respectively.
It may still be worthwhile to refer select cases for criminal contempt. A future administration could theoretically prosecute such cases, assuming the contemnors are not pardoned before Trump leaves office. A bipartisan referral for contempt may have a political signaling effect, if nothing else. However, criminal contempt is no longer a reliable mechanism for either punishing or deterring defiance of congressional process.
Another method of enforcing congressional compulsory process is to seek civil relief in federal court, but there are two fundamental problems with that method. First, DOJ maintains that Congress lacks standing to bring such lawsuits (at least when executive officials are involved) and it contends that the House lacks statutory authorization to bring civil suits at all. While these arguments have not carried the day in the D.C. Circuit, there is uncertainty as to how the Supreme Court would ultimately resolve them. Second, it simply takes too long for federal courts to reach a final resolution of these lawsuits. Even if a congressional committee were able to obtain a favorable final judgment on the merits, it would likely come too late to be useful for oversight purposes.
Civil suits might still make sense as a means of resolving important questions of law. For example, imagine a congressional committee were to seek testimony and documents from Jared Kushner or Steve Witkoff about their negotiations with Russia or Iran. If the president were to assert executive privilege (as he likely would), the committee could ask a federal court to determine if the privilege can be claimed by private citizens. This would be a particularly attractive option for a Senate committee since its jurisdictional statute, 28 U.S.C. § 1365(a), excludes only certain subpoenas “issued to an officer or employee of the executive branch of the Federal Government,” not subpoenas to private individual. But while a civil suit might ultimately decide the underlying legal questions, that decision will probably come too late to be of much use to the committee seeking specific information from Kushner or Witkoff.
That leaves only one other method to enforce congressional demands for information, namely inherent or direct contempt. As readers of this blog know well, this involves one chamber directing its sergeant at arms to arrest a contumacious witness, to bring her before the body for trial and, if there is a conviction, to imprison her until she provides the testimony or documents at issue. This procedure is fraught with difficulties and has not been used for nearly a century, but it may be the only realistic means of compelling the production of information under the circumstances in which we find ourselves.
A direct contempt procedure will require careful planning and discerning judgment. The executive branch will argue that Congress lacks the constitutional power to employ direct contempt against an executive officer who asserts executive privilege at the president’s direction. One of the last acts of the Biden OLC was to issue an opinion to that effect. One could easily imagine the current administration using force to stop the arrest of an executive officer by Congress.
It would therefore be prudent to use direct contempt, at least in the first instance, against non-executive branch witnesses who openly defy congressional authority and who lack any plausible legal basis for their defiance. Time will tell if there are witnesses who match that description.
Finally, each house of Congress should give some consideration to the problem of baseless prosecutions for perjury and false statements in congressional investigations. The Trump administration has attempted such prosecutions against former FBI director James Comey and two former FBI agents (the latter prosecution was just dismissed). The specter of bogus prosecutions against witnesses the administration does not like will have a chilling effect on the willingness of witnesses to cooperate with Congress. Congress cannot directly stop such prosecutions but each house can exercise institutional control over the participation of its members and staff, without which prosecutors cannot hope to win these cases.
Filibuster. One other unicameral action which the Senate should (but will not) consider relates to the filibuster for executive branch nominations. This procedure, which the Senate under Majority Leader Harry Reid eliminated in 2013, gave minority senators a means of blocking nominees they strongly opposed. The elimination of the filibuster is what enabled the partisan confirmation of nominees who were manifestly unfit for office. It also allowed nominees to be confirmed without giving the Senate firm assurances as to their independence and willingness to follow the law.
Impeachment
The framers would have viewed impeachment as the single most important congressional tool to deter and check the kind of executive overreach and lawlessness described in this series. We have noted, though, that it has proved woefully inadequate in an age of extreme partisanship and polarization. No doubt a Democratic House in the 120th Congress would be sorely tempted to impeach President Trump for a third time, but there seems equally little doubt that such an effort would again fail to garner the votes needed to convict in the Senate.
A more promising option would be to focus impeachment efforts on cabinet secretaries and other executive appointees. Historically such impeachments have been exceedingly rare. The House has impeached only two such officers. The first was Secretary of War William Belknap in 1876, and the second was Secretary of Homeland Security Alejandro Mayorkas in 2024. Neither was convicted; the Senate did not even hold a full trial on the articles of impeachment against Mayorkas, instead dismissing them on the grounds that they did not state an impeachable offense.
The dearth of impeachments of executive officers reflects the fact that the Senate usually prevents the confirmation of the most controversial nominees and misbehaving officers tend to be fired or forced out by political pressure. For reasons that relate to the nature of the unitary executive, our era of political polarization, and/or the pathologies of the Trump administration, these safeguards are less effective today. For example, there were many Trump nominees who Republican senators voted to confirm despite serious doubts about their fitness for office. A number of them remain in office today though their performance has not, to put it mildly, assuaged those concerns.
In our current environment, I think that impeachment of subordinate executive officers is more likely to be successful than impeachment of the president. The members of the president’s party will have less interest in defending these officers and the administration will have less incentive to sacrifice other interests in their defense. As I noted last year in the context of congressional investigations generally, “if Congress focuses on crime or wrongdoing by subordinates, whether or not they are acting in accordance with the president’s wishes, Congress’s relative interests in enforcing its information demands become stronger and the executive’s in resisting become weaker.” Perhaps most importantly in the current administration, no one will want to go out on a limb to defend the subordinate officer for fear the president might saw it off.
There is no shortage of candidates for impeachment investigation. As David French noted this weekend, Attorney General Blanche merits impeachment for the high crime of corrupting the Justice Department. Many others could be mentioned. But the first test may come in the current Congress because a Republican member of the House, Thomas Massie, has filed articles of impeachment against Secretary Hegseth. The articles charge various unlawful actions in connection with military operations in Iran, Venezuela and Yemen, the bombing of suspected drug traffickers in the Caribbean and Pacific, and retaliation against Senator Mark Kelly for his protected speech. The impeachment resolution is privileged and the House is supposed to vote shortly after it returns following the election.
Constitutional Amendments
Last but not least is the use of the constitutional amendment process to restrain executive power and curb the excesses of the unitary executive. Note that I refer to the constitutional amendment process, not just amendments themselves. No doubt there are some amendments that could potentially garner broad political support and which, if adopted, would have a meaningful effect of the problems we have discussed in this series. I think, for example, of an amendment to curtail or eliminate the president’s clemency power.
But the substance of a particular amendment is less important than demonstrating to the powers that be that there is sufficient political will to push back on overreach by the federal government and the executive in particular. It is a way of reminding the Supreme Court that it does not have the final word on constitutional questions because the people, through their elected representatives, retain the power to overrule them.
A serious effort to secure amendments curbing executive power would have a salutary effect on the development of constitutional doctrine in this area. Such an effort could theoretically begin in either Congress or the state legislatures (or both). It will not surprise regular readers of this blog that I consider the convention process initiated by state legislatures to be the more efficacious method. Congressional dysfunction is a significant part of the reason that we have a runaway presidency, and it seems unlikely it will be more effective in proposing amendments to curb the executive than it has been in proposing amendments to balance the budget or impose term limits. Truthfully, many in Congress do not mind executive power when the presidency is in the hands of their own party; it gives them a short cut to achieve their policy objectives, not to mention the prospect of powerful jobs for themselves and their staff.
Proposing amendments by a convention, of course, involves an extremely high bar. It requires convincing two-thirds of the state legislatures to seek a convention on the same subject. (We will not rehearse here the debates over whether and how a convention can be limited in scope). This means reaching a consensus between red and blue states on the need for a convention, though they have different views and perspectives on federal and executive power. It is safe to say, however, that no state wants to be treated by the federal government the way the Trump administration has treated the blue states. The question is whether state legislators are willing to extend to other states the same protection they would desire for their own.
I do not underestimate the challenge of reaching a consensus that would first serve as the basis for a convention and then result in a proposed amendment that could be ratified by three-quarters of the states. I do note, however, that there is interest across the political spectrum in a convention to propose amendments. Moreover, the process of attempting to reach agreement on the scope and rules of a convention would be a healthy one. If an agreement could be forged, that alone would go a long way to healing what ails this country.
To be sure, both sides will be tempted to avoid the prospect of making concessions. It is far easier to look for a silver bullet that will allow one side to get what it wants without negotiation or compromise. The left is tempted by the idea of court-packing, which it hopes will allow it to dictate new constitutional jurisprudence, but which is more likely to set off another cycle of partisan retribution or fail entirely. In any event, this cannot even be attempted for at least two years. In the meantime, why not explore the possibility of an Article V convention? Think of it as court-hacking.
Conclusion
For the few who didn’t tldr this post, I thank you for your attention. In my defense, this doesn’t even cover appropriations and spending issues. But I hope it provides some sense of the challenges and opportunities for those who wish to arrest our march toward Caesarism and return to a republican form of government.