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Recommendation That the Department of Justice Not Defend the Constitutionality of Certain Provisions of the Bankruptcy Amendments and Federal Judgeship Act of 1984

Headnotes: 

Provisions of the Bankruptcy Amendments and Federal Judgeship Act of 1984 that retroactively extend the appointments of bankruptcy judges who were in office at the time of the expiration of the transition provisions of the Bankruptcy Reform Act of 1978, as amended, violate the Appointments Clause of the United States Constitution.

The Justice Department should not defend the constitutionality of the reinstatements under the Bankruptcy Amendments and Federal Judgeship Act of 1984, because its general obligation to defend the constitutionality of laws enacted by Congress does not extend to defending laws that unconstitutionally infringe upon the powers of the President.

Updated July 9, 2014