Gillian Metzger, Eloise Pasachoff, & I finished the 2026 supplement to the Gellhorn & Byse Administrative Law casebook. It is comprehensive, with excerpts from many cases, administrative documents, & scholarship. Email me if you want a copy. We hope it is useful to practitioners as well as teachers.

WATCH: @chkbal.bsky.social webinar on whether the proliferation of “acting” exec branch officials accords with the Constitution and the Federal Vacancies Reform Act. With @greggnunziata.bsky.social @ajosephoconnell.bsky.social @thomasberry.bsky.social and Christina Kinane of @ispsyale.bsky.social

The Use and Abuse of the Federal Vacancies Reform Act

A distinguished SRL panel discusses the rise of "acting" executive branch officials and whether circumventing Senate confirmation undermines checks and balances.

chkbal.substack.com

Have taken the 8th grade son and friend to Jonah Kagan concert in SF tonight. Son loves him — thinking he may be 30 year old in young teenage body (judging from the rest of the crowd).

Over at Lawfare, I examine the peculiar constitutional theory undergirding OPM's final rule on Schedule Policy/Career

Lawfare@lawfaremedia.org · 6mo ago

OPM recently published its final rule implementing Schedule Policy/Career, which would convert at least 50,000 federal employees to at-will employment status. @nicholasbednar.bsky.social explores the constitutional theory being asserted by this rule, which would upend 150 years of civil service law.

Yesterday we learned that the Department of Justice is monitoring and tracking members of Congress’s searches of the Epstein files. There’s no sugar coating it: the administration is spying on lawmakers as they exercise their constitutional oversight responsibilities. 1/10

Things need to change here as we are in the midst of yet another suicide cluster -- and removing a lethal means is one thing to do. I send my love to all the teenagers in Palo Alto and especially to the trans community. I wish I could carry some of your pain. padailypost.com/2026/02/05/p...

Trump 2.0 is frightening. But Rubio delegating tasks of the Archivist doesn't violate any statute. Could raise conflict concerns (since Byron is on leave from an entity affected by NARA). And it could raise appointments clause issues (is he an officer?). 1/ federalnewsnetwork.com/people/2026/...

Marco Rubio out as acting head of National Archives | Federal News Network

Before the end of his tenure, Rubio tapped James Byron, senior advisor to the archivist, to serve and perform the functions of archivist.

federalnewsnetwork.com

I am taking a few days of respite at Half Moon Bay. I had become an angry caregiver to the generation above and below. Listening to the ocean and reaching out to old friends has reminded me that I am loved and that although I can also do better I am doing the best I can. Tomorrow has yet to come.

Glad future administrations will benefit from this rules change as well. There are still a lot of vacancies!

Politico@politico.com · 8mo ago

Senate GOP confirms final tranche of Trump nominees before break

BREAKING🚨🚨🚨: Judge rules Trump pick Lindsey Halligan illegally appointed to US Attorney post, dismisses Comey & James cases. But "without prejudice," so they could be refiled although Comey's attorneys say statute of limitations has run. w/ @kyledcheney.bsky.social www.politico.com/news/2025/11...

Comey, James cases dismissed as judge disqualifies interim US attorney Lindsey Halligan

A judge concluded Halligan’s appointment violated laws that limit the ability of DOJ to install top prosecutors without Senate confirmation.

politico.com

Today at 4:00PM EST/3:00 PM CST, I'll be at the ABA Administrative Law Conference speaking with @ajosephoconnell.bsky.social, @nicholashandler.bsky.social, and Philip Howard about the future of the civil service. Have been looking forward to this conversation all semester!

Here’s the link again: events.americanbar.org/event/a13a77...

The second is on the future of the civil service with Nick Bednar, Anne Joseph O’Connell, and Nicholas Handler. It’s really going to be great. So join us! It’s free! For real! Really proud of the ABA Admin Law Section for making lemonade (free conference!) out of lemons (shutdown!).

Can you help me get the word out? We are having trouble reaching government attorneys due to the shutdown. This is 6 hours of CLE of FREE through the ABA. But you don’t have to be an attorney to sign up! Thread of topics we will cover:

Bridget Dooling@bridgetdooling.bsky.social · 9mo ago

NEWS! The ABA Admin Law Conference is FREE this year, in light of the shutdown. Great for admin law practitioners, academics, and students. It'll be Nov. 21 but you'll also be able to access recordings for 30 days afterwards. 6 FREE hours of CLE (approvals pending), including 3 ethics hours:

Government smartly dropped its claim below that President has inherent authority under Article II to name acting officials outside Vacancies Act. Perlmutter didn't contest firing of Librarian--argues Trump can't fire an inferior officer a department head named (her). Same issue in IAF litigation.

Chris Geidner@chrisgeidner.bsky.social · 9mo ago

NEW: DOJ went to SCOTUS today in support of Trump's effort to fire the head of the Copyright Office, Shira Perlmutter. A response is ordered by 4p Nov. 10. (This follows the DC Circuit's Sept. 10 panel 2-1 injunction keeping Perlmutter in the role, & Oct. 1 denial of DOJ's en banc review request.)

A proposal for temporary US attorneys: Permit AG to make *one* 120-day appointment of anyone (& keep the district court role) under 546. But for Vacancies Act (modeled after acting IG reform in NDAA): restrict picks to other confirmed people & senior DOJ people there >90 days before the vacancy.

At least here, Congress now requires acting IGs to be drawn from IG offices. They could do that for acting US attorneys.

Don Moynihan@donmoyn.bsky.social · 10mo ago

The Inspector General system is basically broken now. Most IGs have been fired, most positions remain vacant. Those who remain or would take the job pose no risk to holding the regime accountable. Congress added more barriers to Trump firing IGs after his first term. He just ignored them.

Great live thread of this morning's Third Circuit oral argument in the Alina Habba Vacancies Act case. I agree that unfortunately the judges did not show the command of the basics of the FVRA that you would hope for.

Anne Joseph O’Connell@ajosephoconnell.bsky.social · 10mo ago

I am listening to CA3 argument now on the Vacancies Act. I am screaming & we are only on minute 4. This is separate from the merits. YOU ARE OFTEN THE FIRST ASSISTANT AND THE ACTING. Now you might not be a proper first assistant but the Vacancies Act assumes when it applies the default has 2 titles.

I don't buy the government's argument at the end that it does not use delegation for the whole job, that it goes to the FVRA first. That's not what it did at FEMA--both "heads" are serving through delegation, not the FVRA. Past Administrations have used delegations for whole jobs--is that allowed?

Seems like Giraud is now saying that Habba can oversee all legal proceedings but not give speeches through delegation. Not sure they want to end up there....

I am listening to CA3 argument now on the Vacancies Act. I am screaming & we are only on minute 4. This is separate from the merits. YOU ARE OFTEN THE FIRST ASSISTANT AND THE ACTING. Now you might not be a proper first assistant but the Vacancies Act assumes when it applies the default has 2 titles.

Try 2: He named himself 1st asst. Seems like 1st asst is an inferior office, requiring head to name. Also brings up the ? from US Attorney cases about whether you can name a 1st asst after a vacancy. I think yes (if it's the director), but Congress needs to limit. www.nytimes.com/2025/10/06/u...

C.I.A. Deputy Director Has Replaced Agency’s Top Legal Official With Himself

nytimes.com

The unitary executive theory puts all the power of the executive branch in the hands of one person. That is a problem when he is unaware of some pretty big decisions being made by his underlings.

Dan Saltzstein@dansaltzstein.bsky.social · 10mo ago

“Mr. Trump was first told of the cuts by Ms. Hochul during a phone call on Sunday evening, according to three people with knowledge of the conversation.”

I spent the last several days wandering around federal courthouses in NJ to see how a judicial ruling, which concluded Alina Habba had no authority to be the state’s top prosecutor, was affecting criminal cases. >> Here’s what I saw and heard. w/ @jonesieman.bsky.social

Inside the Crisis Gripping New Jersey’s Federal Courts

nytimes.com

Although I think the Vacancies Act is broader (than the ruling today), which would help Dems >> Reps, I went back to Biden's start on DNJ's US Attorney. When the confirmed Trump 1.0 person left 1/5, his first assistant (career person) became acting and stayed until Biden's pick was confirmed. Norms.

Sen. Cory Booker@booker.senate.gov · 12mo ago

Trump's manipulation of the law to install his personal attorney, Alina Habba, as U.S. Attorney was clearly unlawful as the court recognized today. This legal limbo continues to thwart our prosecutors’ ability to tackle crime in every federal case across the state, putting public safety at risk.

Two smaller acting/interim issues in ruling specific to US Attys: (1) Court holds Vacancies Act is available, even though there is the 28 USC 546 provision (only win in ruling for government). (2) Court holds under 546, AG gets only 120 days from initial appointment so 120 days ran out on July 1.

Some thoughts on the Habba ruling. TL;DR: it upends practice of Republican and Democratic Administrations on actings. I expect Government will win on appeal, at least on the second big issue. The first big issue is about whether first assistants can be named after a vacancy. First court to rule no.

Not just about US attorneys. Judge holds that first assistants cannot be named after a vacancy. And that you cannot use delegation (even of nonexclusive functions) for covered positions under the Act (though they can be ratified later). storage.courtlistener.com/recap/gov.us...

The criticisms here of the effects on law students are right, but miss the most important piece: hiring on first semester grades hurts first-gen students, students who don't have lawyers in the family, students who take a little longer to adjust to law school, etc. 1/ www.law.com/2025/08/18/h...

How Law Students Are Navigating Early Recruitment | Law.com

“In some ways, that’s very powerful, to kind of have your career plan that's buttoned up,” but “the flip side of that, of course, is your career plans are buttoned up for a couple years,” said Carey B...

law.com

Summary Judgement for Sara Aviel -- head of IAF! "To begin, if the President has the power to appoint acting officials to any principal office by default, then the FVRA would be utterly meaningless." storage.courtlistener.com/recap/gov.us...