By Adam Liptak
In the first case to reach the Supreme Court arising from the blitz of actions taken in the early weeks of the new administration, lawyers for President Donald Trump asked the justices Sunday to let him fire a government lawyer who leads a watchdog agency.
The administration’s emergency application asked the court to vacate a federal trial judge’s order temporarily reinstating Hampton Dellinger, head of the Office of Special Counsel. Dellinger leads an independent agency charged with safeguarding government whistleblowers and enforcing certain ethics laws. The position is unrelated to special counsels appointed by the Justice Department.
“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,” the administration’s filing said.
The court is expected to act in the coming days.
The filing amounts to a challenge to a foundational precedent that said Congress can limit the president’s power to fire leaders of independent agencies, a crucial issue as Trump seeks to reshape the federal government through summary terminations.
The statute that created the job now filled by Dellinger, who was confirmed by the Senate in 2024, provides for a five-year term and says the special counsel “may be removed by the president only for inefficiency, neglect of duty or malfeasance in office.” But a one-sentence email to Dellinger on Feb. 7 gave no reasons for terminating him, effective immediately.
He sued, and Judge Amy Berman Jackson of U.S. District Court in Washington entered a temporary restraining order allowing Dellinger to keep his job for two weeks while she considered whether to enter a preliminary injunction. Temporary restraining orders are generally not appealable.
The statute, Jackson wrote, “expresses Congress’ clear intent to ensure the independence of the special counsel and insulate his work from being buffeted by the winds of political change,” adding that the government’s “only response to this inarguable reading of the text is that the statute is unconstitutional.” Jackson was appointed by President Barack Obama.
A divided three-judge panel of the U.S. Court of Appeals for the DC Circuit on Saturday rejected the government’s emergency motion for a stay of Jackson’s ruling. The unsigned majority opinion, joined by Judges Michelle Childs and Florence Pan, both appointees of President Joe Biden, said the government’s motion was premature.
“The question here is not whether the president is entitled to prompt review of his important constitutional arguments,” the opinion said. “Of course he is. The issue before us is whether his mere claim of extraordinary harm justifies this court’s immediate review, which would essentially remove the legal issues from the district court’s ambit before its proceedings have concluded.”
In dissent, Judge Gregory Katsas, a Trump appointee, said he would have blocked Berman’s ruling, thus allowing Dellinger to be removed from office. Citing recent Supreme Court decisions, he wrote that “Congress cannot constitutionally restrict the president’s power to remove the special counsel.”
The administration’s emergency application took aim at a precedent from 1935 that has been crucial to government operations. In that case, Humphrey’s Executor v. United States, the court ruled that Congress can shield independent agencies from politics. Some conservative justices have said they would overrule the precedent, arguing that it unconstitutionally infringed the power of the president.
That case concerned a federal law that protected commissioners of the Federal Trade Commission, saying they could be removed only for “inefficiency, neglect of duty or malfeasance in office.”
President Franklin D. Roosevelt nonetheless fired a commissioner, William Humphrey. The only reason he gave was that Humphrey’s actions were not aligned with the administration’s policy goals.
Humphrey died a few months later, and his estate sued to recover the pay he would have received in that time. The Supreme Court unanimously ruled that the firing had been unlawful and that the statute at issue was constitutional.
In 2020, the Supreme Court seemed to lay the groundwork for overruling that precedent in a case involving the Consumer Financial Protection Bureau.
The law that created the bureau, using language identical to that at issue in Humphrey’s Executor and in Dellinger’s case, said the president could remove its director only for “inefficiency, neglect of duty or malfeasance in office.”
In a 5-4 decision, the court struck down that provision, saying it violated the separation of powers and that the president could remove the bureau’s director for any reason.
In language that anticipated the court’s decision in July granting Trump, then a private citizen, substantial immunity from prosecution for conduct during his first term, Chief Justice John Roberts, writing for the majority, said the presidency requires an “energetic executive.”
“In our constitutional system,” he wrote in 2020, “the executive power belongs to the president, and that power generally includes the ability to supervise and remove the agents who wield executive power in his stead.”
The general reasoning in the chief justice’s opinion left Humphrey’s Executor on life support. Two members of the court — Justices Clarence Thomas and Neil Gorsuch — would have pulled the plug right away.
Justice Elena Kagan, writing for what was then the court’s four-member liberal wing, dissented, saying the Constitution did not address the scope of the president’s power to fire subordinates. Congress should therefore be free, she said, to grant agencies “a measure of independence from political pressure.”
Comments