The Dictatorship
Supreme Court weighs in on the Trump administration’s firing of a whistleblower agency head
The Supreme Court’s first decision on a Donald Trump case in his second term was a choice to put off weighing in for now on his power to fire the head of an independent agency. In response to the government’s emergency application to upend a lower court ruling that stopped Trump from immediately firing Office of Special Counsel head Hampton Dellinger, the court said Friday that it’s holding off on deciding so long as a temporary restraining order against the government is in effect through Wednesday.
So the court declined to immediately give Trump the power he wants or to say he doesn’t have the power he claims. What the court thinks will become clearer during further litigation. There’s a trial court hearing scheduled for Wednesday on the matter, and the issue could certainly come back to the justices for a fuller decision in the future.
Democratic-appointed Justices Sonia Sotomayor and Ketanji Brown Jackson said the administration’s application should have just been rejected, while Republican-appointed Justices Neil Gorsuch and Samuel Alito dissented, with Gorsuch writing an opinion joined by Alito explaining why he would have vacated the lower court order against the government.
The federal government had sought emergency relief for Trump to be able to fire the head of an independent watchdog agency, after lower courts rejected Trump’s bid in one of the flurry of early actions in his second term that have sparked litigation. “Enjoining the President and preventing him from exercising these powers thus inflicts the gravest of injuries on the Executive Branch and the separation of powers,” the administration wrote to Chief Justice John Roberts, who handles emergency requests from the District of Columbia.
The government application sought to undo a trial court judge’s temporary restraining orderagainst the government — set to run through Wednesday while lower court litigation continues — and to immediately pause the order while the justices consider the matter.
Lawyers for Dellinger, the Office of Special Counsel head whom Trump sought to remove, urged the justices to stay out of it. They argued that the government’s application was procedurally premature and substantively lacking. “To accept its theory and grant its request for relief would be to invite more of the same: a rocket docket straight to this Court, even as high-stakes emergency litigation proliferates across the country,” they wrote.
The application follows the administration’s recent statement that it’s prepared to seek the reversal of Humphrey’s Executor, a 1935 Supreme Court precedent protecting federal agency independence that’s implicated by Dellinger’s case and others as Trump tries to consolidate power in his White House.
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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 BLN, he was a legal reporter for Bloomberg Law.