Administrative Law Exam 2007
Question 1 – Key
Warning: This exam key represents a typical checklist like those that I use when I grade answers. It does not
purport, nor should it be taken, to represent complete answers with thorough analysis and discussion. You should
read this key with an eye toward understanding the answers and methodology used to get there but your actual
examine answers should contain more discussion of difficult issues than shown on this key. Also, if students came
up with something I hadn’t thought of in the key but which was relevant, I gave some credit for that.
Section 2(c) of the proposed amendment provides that a US attorney who is serving an interim appointment
may continue in that appointment until (1) Congress approves that or another person for US attorney via
advice and consent or (2) 120 days passes, in which case the interim appointment expires.
Section 2(d) says that in the case of an expired interim appointment under Section 2(c)(2), the district court
for that US attorney shall appoint a US attorney until the vacancy is filled (presumably via the A&C route
of Section 541(b).
Can a district court appoint an interim US attorney?
Article II, Section 2, Cl. 2
Officers:
President nominates with A&C of Senate
Inferior Officers: Congress can vest appointment in (1) President, (2) Heads of Dept’s, (3) Courts
Whether vesting in court is okay will depend on whether the US Atty is an inferior officer:
Morrison factors:
(1) Inferior to others – appointment by AG suggests that is subordinate w/in DOJ and abrupt
replacement suggests that can be removed by executive officials (not as independent as IC in
Morrison)
(2) Limited Duties? - US attorneys only prosecute crimes (although lots of power within that
particular bailiwick)
(3) Limited Jurisdiction? – US attorneys only prosecute & investigate (they don’t even have full range
of DOJ policymaking officials higher up)
(4) Limited Tenure? – Section 541(b) clearly limits tenure to 4 years (although could go longer if
nobody appointed; probably limited somewhat by politics of new president)
Safe to say that US attorney is inferior officer and vesting appointment in court is okay under terms of
Article II, Section II
Inter branch Appointments:
Here one branch (court) is appointing official from another branch (executive).
Morrison held that an inter branch appointment would be improper if there was “some ‘incongruity’
between the functions normally performed by the courts and their duty to appoint.”
Does vesting that appointment intrude too much upon executive discretion since US attorneys are purely
executive officials (per Myers) & need to be able to implement the executive’s agenda (not like IC which
needed to be independent – will parties question propriety of US attorney appointed by the court in which a
case is tried?
BUT as with the IC in Morrison, prosecutor works closely with the courts that are likely to rule for and
against them so who cares if they appoint – plus it’s only an INTERIM appointment. Recent scandal shows
that prosecutors are somewhat independent of executive in that they follow LAW not politics. Courts are
legal bodies.