Who is the valid acting US attorney for the District of Nevada right now? That is the question the Ninth Circuit will soon decide. But the case is about more than just one US attorney. The dispute could resolve several key unanswered questions about when officers can serve without the advice and consent of the Senate.

The sequence of events leading to this controversy began in March, when Attorney General Pam Bondi appointed Sigal Chattah as the acting US attorney under a statute specific to that office. Under the terms of that statute, Chattah could not continue in office past 120 days unless the federal district court judges in Nevada approved her doing so. But rather than wait to see whom the district court would pick, the Trump administration attempted a different plan to keep Chattah in power.

Specifically, the administration invoked the Federal Vacancies Reform Act of 1998 (FVRA). That law, by its own terms, is “the exclusive means for temporarily authorizing an acting official to perform the functions and duties” of a vacant position that normally requires Senate confirmation. The only exception is if another statute “expressly” grants the power to designate an acting officer, and statutes that grant a general power to subdelegate duties are explicitly singled out as examples of statutes that do not qualify.

The FVRA lays out three categories of people eligible to be acting officers. There is no dispute that Chattah did not qualify under two of those three. So the administration attempted to use the third category: the “first assistant” to a position. Chattah was thus appointed the first assistant to the US attorney position after she herself had briefly left office as the acting US attorney. The administration now argues that even though Chattah never served as the first assistant under any other US attorney, she nonetheless immediately became eligible to be the acting US attorney when she became first assistant. And in case this maneuver was invalid, the administration also argues, as a backup theory, that Chattah has been subdelegated all of the powers of a US attorney by the attorney general. Under this theory, Chattah could not call herself the “acting US attorney,” but she could do everything an acting US attorney can do.

Several criminal defendants who are being prosecuted by Chattah challenged her authority, and a district court found that she was serving without legal authority. Now the government has appealed those cases to the Ninth Circuit, and Cato has filed an amicus brief supporting the defendants.

In our brief, we explain why the government’s “first assistant” maneuver did not work. The “first assistant” category of eligibility was designed for people who have spent some time serving as the first assistant under some other officer. Such service prepares first assistants to temporarily step into the office. This purpose would be undermined if someone could be appointed the first assistant to an office that is already vacant and then be instantaneously elevated to the acting position. The best reading of the statute is that first assistants are eligible only if they served under another Senate-confirmed or acting officer, which Chattah did not do.

Our brief also explains why a complete delegation to Chattah of all the US Attorney’s powers would be illegal. If the attorney general could delegate all the powers of a US attorney to a single person, she would be able to effectively create an acting officer without using the FVRA, thus avoiding the FVRA’s time limits and other restrictions. But the FVRA was enacted specifically to end delegations that evade the limits of the Vacancies Act. The FVRA prohibits subdelegating all the powers of a vacant position to a single person, which is exactly what the attorney general attempted to do.

The Ninth Circuit should affirm the district court and hold that Chattah is neither the acting US attorney nor a valid subdelegatee of all the US attorney’s powers.