The Texas Two Step: How Trump is Dealing with Senate Obstruction
The Constitutional Case for the Aaron Reitz Appointment
On July 9, 2026, Aaron Reitz raised his right hand in Houston and took the oath as US Attorney for the Southern District of Texas. “Things are about to get very bad for criminals,” he promised, and given his record as a Marine, as Ken Paxton’s deputy in the Texas Attorney General’s office, and as head of the Justice Department’s Office of Legal Policy, there is little reason to doubt him. What deserves more attention than the oath itself is the elegant legal machinery that put him there. Two days earlier, Acting Attorney General Todd Blanche had appointed Reitz as interim US Attorney under 28 USC § 546, an appointment expressly limited to 120 days. Then the federal judges of the Southern District of Texas voted to appoint Reitz under a separate provision of the very same statute, an appointment that runs until a Senate-confirmed successor takes office. Call it the Texas Two Step.
Critics have already reached for the familiar vocabulary of scandal. They call it a loophole, a workaround, an end run around the Senate’s advice and consent role. Each of these words carries the same insinuation, that the administration found a crack in the law and squeezed through it. The insinuation is false, and demonstrating why it is false requires nothing more than reading the statute Congress wrote.
Begin with the ordinary process. Under 28 USC § 541, the president nominates a US Attorney, the Senate confirms, and the appointee serves a four-year term subject to presidential removal. But Congress understood that vacancies do not wait politely for the Senate calendar, so it built a second track. Under § 546, the attorney general may appoint an interim US Attorney for up to 120 days. If those 120 days expire without a confirmed successor, the statute is explicit about what happens next: the district court may appoint a US Attorney, and that appointee serves until the vacancy is filled through the normal presidential nomination and Senate confirmation process. The judicial appointment is not an improvisation. It is the statutory default that Congress itself selected for precisely the situation the Southern District faced.
A skeptical reader might pause here and ask whether judges appointing prosecutors can possibly be constitutional. It is a fair question, and it has a settled answer. The Appointments Clause permits Congress to vest the appointment of inferior officers “in the Courts of Law,” and it says so in exactly those words. The First Circuit upheld the judicial appointment mechanism for US Attorneys in United States v. Hilario in 2000, and no appellate court has held otherwise. The pedigree runs deeper still. Congress has authorized court appointment of interim US Attorneys in one form or another since the 19th century. When Congress briefly stripped the courts of this power in 2006 and handed the attorney general indefinite interim authority instead, the arrangement proved so unpopular that a bipartisan Congress restored the judicial mechanism in 2007 by overwhelming votes. In other words, the current statute reflects a deliberate, recent, and bipartisan congressional judgment that district judges should serve as the backstop when confirmations stall. The Trump administration did not discover a loophole. It read the instructions.
Now consider why the Southern District’s judges held this authority in the first place. The vacancy dates to January 19, 2025, when Biden appointee Alamdar Hamdani resigned. The Trump Justice Department installed Nicholas Ganjei as interim US Attorney on January 29, 2025, and when his 120 days ran out, the Southern District judges unanimously appointed him under § 546(d) on May 28, 2025. Ganjei was later elevated to the federal bench, First Assistant John Marck ran the office in an acting capacity, and Marck himself was confirmed to a district judgeship on June 24, 2026 by a 52 to 45 vote. Through all of it, no presidentially nominated and Senate-confirmed US Attorney ever filled the original Hamdani vacancy. The judges’ appointment power, having attached to that continuing vacancy, remained available. When they exercised it for Reitz, they were doing in 2026 exactly what they had done, unanimously and without controversy, in 2025.
Why, then, the second appointment from Blanche? Here the strategy shows its sophistication rather than any sleight of hand. Blanche’s July 7 order gave Reitz immediate authority to act, since a judicial appointment takes time to organize and a US Attorney’s office cannot sit headless while judges schedule a vote. The judicial appointment then supplies durability. There is a live legal question, sharpened by a 2025 ruling from a federal district court in Virginia, about whether the attorney general receives a fresh 120-day clock each time an interim appointee departs, or whether the appointment power shifts permanently to the district court once the first clock expires. That Virginia decision does not bind Texas courts, but a prudent litigator plans for the possibility that Texas judges might find it persuasive. By securing both appointments, the administration gave Reitz two independent legal foundations. A defendant who challenges Blanche’s authority runs into the judges’ appointment; a defendant who quibbles with the judges’ order runs into Blanche’s. Every indictment Reitz signs rests on redundant footings. This is not evasion of law. It is respect for law carried to the point of engineering.
The honest critic will raise Blanche’s own words against him. During a February 2026 fight over a court-appointed prosecutor in New York, Blanche wrote that judges do not pick US Attorneys, the president does. As a description of § 546(d), that statement was too broad, since Congress plainly gave judges an appointment role. But the underlying principle Blanche defended survives the rhetorical overreach. The constitutional concern with judicial appointments arises when courts install prosecutors over the executive’s objection, setting the judiciary against the president’s Article II control of law enforcement. Nothing of the kind happened in Houston. The judges reportedly appointed the very man the administration had already installed, and the president retains statutory removal authority over him regardless of who signed the appointment. Executive control was never diminished for a moment. The distinction between judges overriding the executive and judges cooperating with it is not a lawyer’s trick; it is the whole ballgame.
Nor should anyone accept the claim that Reitz now holds a permanent, unaccountable office. A court-appointed US Attorney serves only until a Senate-confirmed successor qualifies. The White House could send up a nominee tomorrow, the Senate could confirm him, and Reitz’s judicial appointment would dissolve by operation of the statute. The Senate has not been stripped of its advice and consent power. It has been stripped of something it never legitimately possessed, the power to keep one of the nation’s most consequential prosecutorial offices vacant indefinitely. Reitz himself, it is worth adding, has already faced the Senate and won, confirmed 52 to 46 on March 26, 2025 to lead the Office of Legal Policy. That confirmation does not carry over to the US Attorney post as a legal matter, but it demolishes the suggestion that the administration is hiding an unconfirmable radical from scrutiny. The Senate examined this man 15 months ago and consented.
Step back and the Reitz appointment resolves into a larger picture. Only 43 of the 93 US Attorney positions are filled by Senate-confirmed appointees. That figure is not an indictment of the administration; it is an indictment of a confirmation process that the minority (and in some cases the majority) has weaponized by refusing unanimous consent and forcing cloture votes on nominees who would once have been confirmed in batches by voice vote, burning floor hours that leadership must ration against judges, cabinet officials, and legislation. Faced with a pipeline that moves at that pace, the Justice Department has adopted judicial appointment as a staffing strategy across the country, and the Southern District’s own recent history with Ganjei shows the model working smoothly. Conservatives who spent decades arguing that the executive must be able to execute the laws should recognize this for what it is. When the Heritage Foundation and other advocates of the unitary executive warned that Senate dysfunction would eventually force presidents to rely on the statutory tools Congress provided, this is what they meant. The administration is not defying Congress. It is using the machinery Congress built, in the sequence Congress prescribed, for the purpose Congress intended.
One candid caveat belongs on the record, because credibility is worth more than tidiness. As of this writing, the Southern District’s public docket of 2026 general orders does not yet display the judges’ appointment order for Reitz, and the statute directs that such an order be filed with the clerk. Bloomberg’s reporting on the vote is credible, and orders sometimes surface on a lag, but readers should watch for the document itself, including its effective date and terms. If the order appears as reported, the two-step is complete. If it does not, Blanche’s 120-day appointment still governs, and the judges retain the power to act before it lapses.
Either way, the lesson stands. The Texas Two Step is what lawful hardball looks like: immediate leadership from the attorney general, long-term stability from the district court, redundant legal foundations against foreseeable litigation, and a Senate whose refusal to do its work has been converted from a governing crisis into a procedural irrelevance. The administration played the statute as written. Those who dislike the result should take their complaint to the body that wrote it.
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Alexander Muse is a Fellow at the John Milton Freedom Foundation and publishes daily political analysis at amuseonx.com. Primary sources cited in this piece are linked inline; campaign finance figures are drawn from FEC filings, polling data from publicly released crosstabs, and legal claims from filed pleadings. Corrections are posted to the original URL with a dated changelog. Readers who identify errors are invited to contact the author directly. Data in sponsored partnership with Polymarket.
Amen.
(Great writing, again!)
The Reitz appointment may be lawful hardball under the statute. But the statute itself exposes a separation-of-powers deformity. U.S. Attorneys prosecute for the Executive. They answer to the President through the Attorney General. They exercise Article II law-enforcement power. So why are Article III judges — the same judges who will later preside over criminal cases brought by that office — voting on who runs the prosecution shop? That is not clean constitutional architecture. It is a conflict factory dressed up as vacancy management. The problem becomes obvious when the politics flip. In Texas, judges cooperated with Trump’s pick. In New Jersey, hostile district judges effectively blocked Alina Habba. Same mechanism, different politics. If judges want independence, they should stop participating in executive staffing. The President already has leverage against a Senate that refuses confirmations: refuse their bills, force negotiations, make appointments a political cost, as Trump is already doing with the SAVE Act. But letting the judiciary serve as gatekeeper over prosecutors is madness. A court should judge cases, not help pick the lawyer bringing them. Congress should repeal the judicial-backstop provision and leave interim executive appointments inside the Executive Branch.