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“(Attorneys are) thinking, ‘What’s the likelihood they’re going to affirm the decision or they’re going to reverse the decision?'” said Richard Kling, clinical professor at the Chicago-Kent College of Law. “Obviously they thought it was in their advantage to dismiss it.”

“The administration is trying to dispense with the niceties of the Federal Vacancies Reform Act, which Congress has passed in order to structure who can fill vacant positions,” said constitutional law professor Harold Krent. “The administration obviously wanted Alina Habba to be the interim U.S. attorney and had the right under the statute to appoint her … but under that particular statutory provision, it only lasted for 120 days.”

“Even the lower courts that have ruled against the president believe that the president is entitled to a fair amount of deference. I don’t think that’s a controversial view. But the (federal) government is taking the position that the president’s decisions in this are completely unreviewable,” said Carolyn Shapiro, founder and co-director of the Chicago-Kent College of Law’s Institute on the Supreme Court of the United States. “I think that’s completely wrong, and it seems unlikely to me that there are five votes for that position, because if there were, they would have already granted a stay.”