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The court noted that the judges who issued the original ruling did not request a rehearing, and a majority of the full court voted against taking the case en banc. Three of the court\u2019s 11 active judges dissented and would have reheard the case, with one dissenting opinion to be released later. Judge Emil Bove\u2014another Trump appointee and former Trump attorney\u2014did not participate in the vote.<\/p>\n\n\n\n
The ruling keeps in place the panel\u2019s conclusion that Habba\u2019s continued service violated federal law, despite what the judges described as a \u201cnovel series of legal and personnel moves\u201d by the Trump administration to keep her in office. Critics on the right argue those moves were necessary responses to an increasingly aggressive judiciary inserting itself into executive branch decisions.<\/p>\n\n\n\n
At issue is a long-standing statute governing how vacant U.S. attorney positions are filled. When Habba\u2019s interim term expired in July, federal judges in New Jersey declined to extend it and instead used a rarely invoked power to appoint her first assistant as U.S. attorney. In response, Attorney General Pam Bondi removed that appointee, and President Trump withdrew Habba\u2019s formal nomination, redesignating her as acting U.S. attorney.<\/p>\n\n\n\n
The panel ruled that this maneuver violated the \u201cplain text\u201d of the statute, arguing that once a president submits a nomination\u2014even if later withdrawn\u2014the legal timeline changes. Writing for the unanimous panel, Judge D. Michael Fisher, a George W. Bush appointee, acknowledged the administration\u2019s frustration with \u201clegal and political barriers\u201d to staffing key law enforcement roles but concluded the law did not allow the workaround.<\/p>\n\n\n\n
Supporters of the administration see the case differently, arguing it highlights a broader pattern of unelected judges constraining the president\u2019s constitutional authority to oversee the executive branch. The Justice Department warned the Third Circuit that the panel\u2019s ruling imposes \u201catextual limits\u201d on acting U.S. attorneys and raises issues of \u201cexceptional importance,\u201d particularly for a president seeking to implement the policies voters elected him to carry out.<\/p>\n\n\n\n
Although Habba resigned last month following the ruling, she has made clear she intends to return if a higher court rules in her favor\u2014underscoring how unsettled the law remains. The administration is widely expected to ask the Supreme Court to step in, potentially clarifying the balance of power between the presidency and the judiciary.<\/p>\n\n\n\n
Habba was the first of several Trump-aligned U.S. attorneys to be sidelined under similar legal theories. Comparable rulings have since affected prosecutors in Los Angeles, Nevada, the Northern District of New York, and the Eastern District of Virginia. In Delaware, the state GOP chair-turned-U.S. attorney resigned after citing the Third Circuit\u2019s decision.<\/p>\n\n\n\n
In Virginia, Lindsey Halligan\u2014another former Trump attorney\u2014resigned last week after a judge barred her from acting as U.S. attorney unless she was confirmed by the Senate or appointed by the court. That ruling led to the dismissal of federal cases against former FBI Director James Comey and New York Attorney General Letitia James, two prominent critics of President Trump\u2014fueling conservative concerns that procedural technicalities are being weaponized to interfere with prosecutorial discretion.<\/p>\n\n\n\n
For many Republicans, the growing list of disqualified Trump-aligned prosecutors raises fundamental questions: Who controls federal law enforcement\u2014the elected president or the courts? And how far can judges go in second-guessing executive decisions before crossing into policymaking themselves?<\/p>\n\n\n\n
Those questions now appear headed for the nation\u2019s highest court.<\/p>\n\n\n\n