Third Circuit judges probe ‘unusual’ circumstances of Habba’s appointment

[Timber Rattler]

https://newjerseyglobe.com/judiciary/third-circuit-judges-probe-unusual-circumstances-of-habbas-appointment/

A judge in August ruled that Habba was serving without legal authority.

The Trump administration’s efforts to keep Alina Habba as acting U.S. Attorney for the District of New Jersey faced a key test today, as the Third Circuit Court of Appeals heard oral arguments about whether or not to overrule a district judge’s August ruling disqualifying Habba from her role.

The Third Circuit’s three-judge panel – consisting of Senior Judges D. Brooks Smith and D. Michael Fisher, both George W. Bush appointees, and Judge L. Felipe Restrepo, an Obama appointee – did not say when a ruling should be expected in the case, which has nationwide implications for President Donald Trump’s powers to appoint key officials without any input from the Senate or the federal judiciary.

Smith, Fisher, and Restrepo had incisive questions for both sides of the thorny legal and political issue in court today. But the judges were particularly interested in probing some of the government’s arguments in favor of Habba, noting that they would effectively give presidential administrations the power to circumvent the checks-and-balances otherwise placed on presidential appointment powers.

“Would you concede that the sequence of events here – for me, they’re unusual, and we can recite them if you wanted to take the time – would you concede that there are serious constitutional implications to your theory, the government’s theory, which really is a complete circumvention, it seems, of the appointments clause?” asked Senior Judge D. Brooks Smith, a Bush appointee.

Henry Whitaker, an Assistant U.S. Attorney General who argued the case for the government, ... “There’s nothing unusual about the current status quo in ... New Jersey, where you have an acting official who is serving and there is no present nominee,” Whitaker said. “That’s a circumstance that Congress explicitly contemplated would occur.”

EXCERPT

Keeping an eye on this one.  The judges really want to dump Habba but are worried that SCOTUS will overrule them and overturn the 1998 Federal Vacancies Reform Act as unconstitutional.