The Dictatorship
The first case of Trump’s second term reaches the high court
It took less than a month for a case from Donald Trump’s second presidential term to reach the Supreme Court. The administration’s appeal stems from Trump’s attempt to fire a top government watchdog in a dispute that implicates long-standing precedent that protects independent federal agencies. How the justices handle it could give us the first glimpse of their thinking at this early stage of an already litigation-packed term.
The background here is that Trump sought to fire Hampton Dellinger, head of the Office of Special Counsel. The OSC is an independent agency that protects federal employees and applicants from retaliation for whistleblowing and other protected practices (not to be confused with the Justice Department’s special counsels, like Jack Smithwho prosecuted Trump). A divided federal appeals court panel issued a ruling over the weekend that keeps Dellinger in his position for now, which prompted the administration to seek emergency relief from the high court.
Specifically, Trump’s acting solicitor general, Sarah Harris, wants the court to undo a trial court judge’s temporary restraining order against the government — which is set to expire Feb. 26 — and to immediately pause the order while the justices consider the matter.
“This case involves an unprecedented assault on the separation of powers that warrants immediate relief,” Harris (a former Clarence Thomas clerk) wrote to Chief Justice John Roberts, who handles emergency litigation from the District of Columbia. She cited the Roberts-authored immunity decision in Trump’s favor that touted the president’s power, as well as other recent rulings that enhanced presidential authority over federal agencies.
Harris cast Trump’s bid to remove Dellinger earlier this month as “uncontroversial,” while deeming the lower court reaction extraordinary. “Until now,” she wrote, “as far as we are aware, no court in American history has wielded an injunction to force the President to retain an agency head whom the President believes should not be entrusted with executive power and to prevent the President from relying on his preferred replacement.”
Absent emergency relief, Harris warned, lower courts would be “embolden[ed]” to grant restraining orders against the White House. “This Court should not allow lower courts to seize executive power by dictating to the President how long he must continue employing an agency head against his will,” she wrote.
The application comes as Harris recently wrote to Congress that the government is prepared to seek the reversal of a 1935 precedent called Humphrey’s Executorwhich has long protected agency independence.
Opposing the government’s high court bid, Dellinger’s lawyers wrote that the administration is trying to create an exception to the general rule that temporary restraining orders can’t be appealed. “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. They added that Humphrey’s Executor and other precedents cited by the government “all support the constitutionality of the OSC’s for-cause removal limitation.”
And they called it “an especially unfortunate moment at which to weaken the OSC, given the historic upheaval currently occurring within federal employment and the continued importance of ensuring that whistleblowers are guarded from reprisal.”
We could soon learn what Roberts and his colleagues make of all this. To be sure, they could issue a procedural-type ruling — such as lifting the restraining order for a brief period while they further consider the issue — that wouldn’t necessarily determine how the court will ultimately resolve the merits of the issue. And their eventual resolution as to the merits of Dellinger’s removal also won’t necessarily determine how they’ll deal with other agencies and lawsuits.
But whatever the court does decide will be scrutinized closely not only for what it means on this important issue but for any indications of how the court might treat Trump’s broader bid to consolidate power in his second term.
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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.