The Dictatorship
Federal official’s firing could be one of the most telling tests of SCOTUS under Trump 2.0
As the battles over federal funding freezes and Elon Musk’s access to data at major executive branch agencies dominate the headlines, the Trump administration has been quietly firing scores of commissioners, directors and other officials heading lesser-known but critical government agencies.
There’s no question that Donald Trump has relished proclaiming, “You’re fired!” since his days starring on “The Apprentice.” But never before has that phrase engendered a serious constitutional issue. Until now, that is.
During his second week in office, the president fired the Democratic members and general counsels of two multimember agencies that help resolve labor and employment discrimination disputes: the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission. Critics charged these were unlawful firings since the statutes that govern many independent agencies and commissioners require that they not only have multiple members with staggered, lengthy terms but also have members selected by both major parties.
Some of those dismissed aren’t taking their purported firings lying down.
Then, last week, Trump removed the chair of the Federal Elections Commissionwhich oversees the enforcement of campaign finance laws and is another multimember body with staggered terms. He also fired the head of the Consumer Financial Protection Bureau (CFPB)which was created to exert greater federal oversight over mortgages, credit cards, car loans and other consumer financial offerings.
And in one of his latest moves, he terminated two people who help ensure the federal government operates ethically and transparently. Specifically, he fired the head of the Office of Government Ethicswhich monitors federal officials’ conflicts of interest and publishes their detailed financial disclosures, and the head of the Office of the Special Counsel.
Some of those dismissed aren’t taking their purported firings lying down. Gwynne Wilcox, for example, has already filed a lawsuit to be reinstated to her role on the NLRB; meanwhile, Ellen Weintraub, whom Trump removed as chair of the FEC, told Rachel Maddow on her Feb. 7 broadcast that she was considering all of her options.
So far, only one dismissed official has won a reprieve, albeit a temporary one: Hampton Dellinger, the special counsel of the Office of the Special Counsel.
Dellinger is not to be confused with Jack Smith, Robert Mueller or other special counsels who have been appointed by a U.S. attorney general. Rather, the OSC is a permanent federal agency best known for its role in protecting government whistleblowers and enforcing the Hatch Act, which prohibits political activity, including fundraising, by certain federal officials and/or on federal grounds.
And as is especially relevant now, as the legal fight over the administration’s so-called buyout program escalates, the OSC also has a more significant role: overseeing enforcement of the Civil Service Reform Act (CSRA). Essentially, the OSC is charged with investigating, resolving and even sometimes elevating disputes in lieu of or before a federal employee seeks relief independently through the Merit System Protection Board.
And that function has a lot to do with the so-called buyout program. In particular, the Justice Department’s principal argument against a court’s temporarily blocking the program is that federal district courts do not even have jurisdiction over the plaintiffs’ claims. Why? Because the CSRA establishes a “comprehensive remedial scheme” for federal employees to raise and resolve employment disputes. And to the extent that a head of OSC disagrees with that position — e.g., that unions or employees can dispute the legality of the buyout program only by starting with administrative channels — it’s easy to see how he could become a target for this White House. Basically, if left in place at the OSC, Dellinger could undermine the DOJ — and Trump — by disputing their insistence that challenges to the buyout program can’t be heard in courts.
Dellinger, for his part, was confirmed to his position in February 2024 and his term is supposed to last until 2029. So he has sued to be restored to his position immediatelyflagging that the statute establishing the OSC allows for his removal by the president “only for inefficiency, neglect of duty, or malfeasance in office.”
Whether this Supreme Court would uphold the protections against removing the special counsel is unclear.
On Monday night, a federal judge in Washington, D.C., issued an administrative stayor pause, on Dellinger’s firing until midnight on Feb. 13. Tellingly, the DOJ has already filed a notice of appeal and is seeking an emergency stay from a federal appeals court, arguing that the judge’s purportedly modest order is instead “an extraordinary — indeed, unprecedented — intrusion into the President’s authority to exercise all of the executive power of the United States.” That appeals court has ordered both sides to submit additional briefing by noon on Wednesday.
Whether this Supreme Court would uphold the protections against removing the special counsel is unclear. On one hand, a 2020 opinion ruled that the structure of the CFPB was unconstitutional because there was a single director who was removable by the president only for cause. As a result, a president can now remove the CFPB director for any reason, as Trump already has done. In that opinion, however, Chief Justice John Roberts discussed whether the OSC is analogous, observing that “the OSC exercises only limited jurisdiction to enforce certain rules governing Federal Government employers and employees” and “does not bind private parties at all or wield regulatory authority comparable to the CFPB.”
On the other hand, in holding just a year later that the Federal Housing Finance Authority’s structure — also a single director, removable for cause — intrudes on the president’s constitutional authority, Justice Neil Gorsuch explained that “the nature and breadth of an agency’s authority is not dispositive in determining whether Congress may limit the President’s power to remove its head.”
Gorsuch continued, in language echoed these days by the White House press secretary and other senior administration officials, that the president’s removal power is necessary for him to “maintain a degree of control over the subordinates he needs to carry out his duties … and works to ensure that these subordinates serve the people effectively and in accordance with the policies that the people presumably elected the President to promote.”
So for now, Dellinger is back at the Office of the Special Counsel, but given Trump’s focus on firing whomever, whenever and however to consolidate executive control, Dellinger’s battle for his job could become one of the first and most telling tests of where this Supreme Court might impose limits — and even if it does, how the Trump administration will react.
The Dictatorship
Justice Jackson keeps calling out what she sees as needless Supreme Court interventions
Justice Ketanji Brown Jackson continues to speak out when she believes her colleagues are misusing their power. The latest example came Monday, when the Biden appointee dissented from a Supreme Court ruling in favor of law enforcement in a Fourth Amendment case.
In District of Columbia v. R.W.the high court majority disagreed with a ruling from D.C.’s appeals court that said a police officer violated the amendment by stopping a person without reasonable suspicion. In an unsigned through the court opinion, the justices said the D.C. court failed to properly consider the “totality of the circumstances.” The justices summarily reversed the lower court.
Jackson, however, saw the maneuver by her colleagues as heavy-handed.
In her dissent, she wrote that if the court’s intervention “reflects disapproval” of the D.C. court’s “assessment of which particular facts to weigh and to what extent, I cannot fathom why that kind of factbound determination warranted correction by this Court.” She deemed the move “not a worthy accomplishment for the unusual step of summary reversal.”
A notation at the end of the majority’s opinion said that Justice Sonia Sotomayor would have denied D.C.’s petition for high court review, but she didn’t join Jackson’s dissent or write her own to elaborate.
Jackson’s dissent follows a lecture she gave last week at Yale Law School in which she criticized what she saw as her colleagues’ disrespect of lower courts’ work.
Monday’s ruling appeared among several high court actions on a 25-page order lista routine document containing the latest action on pending appeals. The list is mostly unexplained denials of petitions for review, but sometimes it contains opinions and justices writing separately to explain themselves.
In another case on the list, Sotomayor, Jackson and the court’s third Democratic-appointed justice, Elena Kagan, all noted their dissent from the majority’s unexplained summary reversal in favor of law enforcement in a qualified immunity case.
It takes four justices to grant review of a petition. That simple math underscores the lack of power wielded by the three Democratic appointees, especially on the most contentious issues.
On that note, one of the new cases the court took up on Monday involves its latest foray into religion in public life, which the religious side has been winning at the court. The new case is an appeal from Catholic preschools in Colorado that want public funding while still admitting, as they wrote in their petition“only families who support Catholic beliefs, including on sex and gender.” The case will be heard in the next court term that starts in October.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,” a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
The Dictatorship
The White House’s personal, financial and diplomatic lines keep blurring
About a month ago, when Donald Trump spoke at a conference for Saudi Arabia’s sovereign investment fund, it was hard not to notice the complexities of the circumstances. On the one hand, Riyadh has helped steer the White House’s policy in Iran. On the other hand, the president’s son-in-law, having already received billions of dollars from Saudi Arabia, recently turned to the Middle Eastern country for more money for his private investment firm.
All the while, Saudi officials remain focused on private dealings with Trump’s family business, as the Republican extended his public support to the sovereign investment fund, ignored Pentagon concerns about selling F-35 fighter jets to Saudi Arabia and designated Saudi Arabia a “major non-NATO ally” as part of a new security agreement.
The trouble is, it’s not just the Saudis.
The New York Times reported on wealthy interests in Syria with ambitions plans for the nation’s future who needed the U.S. to drop the economic sanctions that crippled the country during Bashar al-Assad’s reign. One Syrian-born businessman, Mohamad Al-Khayyat, secured a meeting with Republican Rep. Joe Wilson of South Carolina, who recommended that plans for a luxury golf course carry the Trump Organization brand as a way of getting the American president’s attention.
The Times’ report, which has not been independently verified by MS NOW, added that the businessman was way ahead of the congressman. He’d already planned to propose a Trump-branded resort. The same businessman’s brothers, who enjoy the backing of Thomas Barrack, the American president’s special envoy to Syria, were also negotiating a real estate partnership with Ivanka Trump and Jared Kushner.
The Times summarized the broader context nicely:
Such a mixing of personal and diplomatic affairs has long been the norm in Middle Eastern nations, where a small set of players have historically run, and profited from, their dominant role in society. But it has become the way Washington operates in Mr. Trump’s second term, too.
Business discussions involving the president’s family … are consistently blurred with important policy decisions or consequential nation-to-nation negotiations.
Not to put too fine a point on this, but developments like these aren’t supposed to happen in the U.S. If a foreign country wants a change in federal economic sanctions, it’s supposed to go through proper diplomatic and economic channels as part of a formal process to prevent corruption and potential conflicts of interests.
In 2026, that model has been torn down — and replaced with what the Times described as “a warped system of executive patronage,” which is awfully tough to defend.
The article added:
Mohamad Al-Khayyat returned to Washington late last year toting a special stone celebrating the proposed golf course, carved with the Trump family emblem. He presented it to Mr. Wilson in his Capitol Hill office to deliver to the White House. Mr. Al-Khayyat then joined meetings with other lawmakers to push the sanctions repeal.
Weeks later, legislation for a permanent repeal won approval in Congress and was signed into law by Mr. Trump in late December.
This was no doubt noticed by officials and monied interests elsewhere, sending a clear signal about how to interact with the U.S. government (at least until January 2029).
Steve Benen is a producer for “The Rachel Maddow Show,” the editor of MaddowBlog and an MS NOW political contributor. He’s also the bestselling author of “Ministry of Truth: Democracy, Reality, and the Republicans’ War on the Recent Past.”
The Dictatorship
Monday’s Campaign Round-Up, 4.20.26: Obama makes one last pitch ahead of Virginia race
Today’s installment of campaign-related news items from across the country.
* This week’s biggest election is in Virginia, where voters will decide whether to advance a Democratic redistricting effort. Ahead of Tuesday’s balloting, Barack Obama filmed one last pitch to the electorate in the commonwealth.
* With former Rep. Eric Swalwell out of California’s gubernatorial race, billionaire Tom Steyer is spending heavily to claim the front-runner slot. The Associated Press reported“Data compiled by advertising tracker AdImpact show Steyer has spent or booked over $115 million in ads for broadcast TV, cable and radio — nearly 30 times the amount of his nearest Democratic rival.”
* On a related note, the California Teachers Association, which had backed Swalwell, threw its support behind Steyer’s bid last week.
* When Donald Trump held an event in Nevada last week, many watched to see whether Joe Lombardo, the state’s Republican governor who is facing a tough re-election fight in the fall, appeared at the gathering. He did notthough Lt. Gov. Stavros Anthony spoke at the event.
* In Pennsylvania, Democratic Sen. John Fetterman isn’t up for re-election until 2028, but Punchbowl News asked every other Democratic member of the state’s congressional delegation whether the incumbent senator should run for a second term as a Democrat. Not one said he should.
* Jack Daly, a political operative who pleaded guilty in 2023 to defrauding thousands of conservative political donors, has lost some Republican clients of late, but the National Republican Senatorial Committee has continued to use the services of Daly’s firm.
* And in Tennessee, Republican Rep. Andy Ogles appears to be running for re-election, though his fundraising is badly lacking: As of the end of March, the far-right incumbent only had around $85,000 cash on handwhich lags his GOP primary opponent, former Tennessee Agriculture Commissioner Charlie Hatcher, who has around $150,000 in his campaign account.
Steve Benen is a producer for “The Rachel Maddow Show,” the editor of MaddowBlog and an MS NOW political contributor. He’s also the bestselling author of “Ministry of Truth: Democracy, Reality, and the Republicans’ War on the Recent Past.”
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