“… as unconstitutional as anything…”

An extraordinary and constitutionally significant battle has erupted in New Jersey. A panel of federal district judges, invoking a little-known federal law, moved to replace a U.S. Attorney chosen by the President. In a swift and defiant response, the Attorney General immediately removed the judges’ handpicked replacement.

This is not a mere political squabble. It is a rare and profound stress test of our system of checks and balances, pitting the President’s appointment power directly against a specific statutory power granted to the courts by Congress. The standoff forces a complex constitutional question:

When the President’s authority to choose his prosecutors and a law passed by Congress are in direct conflict, which one gives way?

The Separation of Powers on Trial

To understand this conflict, one must first understand the three distinct constitutional powers at play.

The President’s Appointment Power: Article II of the Constitution gives the President the power to nominate, and with the Senate’s consent, appoint principal officers of the United States, including U.S. Attorneys. This is a core executive function.

Congress’s Legislative Power: Article I gives Congress the power to structure the government and pass laws that are “necessary and proper.” This includes creating the office of U.S. Attorney and establishing rules for how to handle vacancies.

The Judiciary’s Statutory Power: A specific federal statute, 28 U.S.C. § 546, grants federal district courts the authority to appoint an interim U.S. Attorney if a presidential appointment for a vacancy has not been filled for 120 days.

The judges in New Jersey were not, as some have claimed, staging a partisan “coup.” They were acting under the authority of a specific law passed by Congress, designed to ensure the Department of Justice can continue to function in a district even when a permanent prosecutor has not been confirmed.

A Lawful Act or an Unconstitutional Law?

The central constitutional debate has been articulated by legal scholar Alan Dershowitz. He argues not that the judges broke the law, but that the law itself is unconstitutional.

“Let me be very clear that is as unconstitutional as anything could possibly be,” Dershowitz declared, arguing that the statute violates the strict separation of powers. “You cannot give judges more power than the Constitution gives them.”

This is the sophisticated heart of the conflict. The argument is that by allowing the judicial branch to perform a fundamentally executive function—appointing a prosecutor—Congress has created a law that improperly mixes the powers of our co-equal branches.

The administration’s swift removal of the judges’ appointee is a clear signal that it shares this view, asserting the President’s exclusive authority over the prosecutorial function of the government.

The Purpose of an “Interim” Appointment

It is crucial to understand the limited nature of the power Congress gave to the courts. The statute does not allow judges to permanently “pick prosecutors.” It allows them to appoint a temporary placeholder, an interim U.S. Attorney, whose role is to keep the office running until the President and Senate can successfully install a permanent, politically appointed leader.

The law was designed as a practical solution to prevent the justice system from grinding to a halt due to political gridlock or neglect. The administration’s immediate and forceful rejection of even a temporary, court-appointed steward signals an unwavering commitment to the principle of total executive control over every aspect of the Justice Department.

This extraordinary standoff is more than a political drama. It is a powerful illustration of the deep and unresolved tensions within our separation of powers framework. The events in New Jersey have unearthed a genuine constitutional dilemma:

Can Congress, in its effort to ensure the continuity of government, lawfully place a check on the President’s appointment power?

The answer, which may ultimately have to be settled by the Supreme Court, will have lasting implications for the balance of power between all three branches of our government.