The first test to reach the Supreme Court of President Trump’s sweeping claims of unchecked constitutional power over the government resulted Friday night in a brief setback, keeping a fired federal official in his job for another five days.
Little of final meaning can be read into the Court’s ruling, which amounted only to a postponement of this particular dispute by an apparent vote of 5-to-4. Two Justices would have temporarily overturned the official’s hold on the position, as the President wanted, and two other Justices would have denied the President’s plea to enforce immediately the official’s firing. The remaining five Justices apparently voted for the delay.
When the postponement ends, scheduled for next Wednesday, the Court could act again. What it might do then, however, depends upon whether lower federal courts take any further action over the five-day interval that the Court has ordered. That might sharpen the dispute, procedurally, and lead the Court to then issue a significant decision.
Although this initial test before the Justices of Trump’s boisterous use of his authority involves only the leader of one fairly minor agency – the small office that protects the workplace rights of federal government employees, the dispute potentially could be an important beginning on the Court’s dealings with Trump in his new presidential term.
Trump, his close advisers and his lawyers are claiming in this case that, in order to be able to assure that all federal government agencies carry out the White House’s policy agenda, the President must have total power to fire any official in any Executive Branch agency – even if there has been no misconduct or failure to perform by such an official. If that is how this case comes out in the end, it could be the greatest enlargement of presidential authority in the nation’s history.
If there is constitutional power for a President to fire “at will” any Executive Branch official, it would be just a short step to action by the President to demand control over how that agency uses the powers given to it by Congress as well as control over how the agency spends money authorized by Congress. Indeed, President Trump has just published an order in which he is already claiming those additional powers.
The potential outcome might well be the end of the 138-year history of congressional creation of federal agencies with significant independence from the White House, protection that Congress gave them against political control from the President. Scores of agencies would be affected.
One form of protection – the kind at issue in the case now before the Supreme Court – is to insulate agency leaders from being fired unless there is a significant cause, a failure to perform duties.
The Justices’ action Friday night involves a federal official, Hampton Dellinger, who is in the first year of a five-year term as head of the independent agency, the Office of Special Counsel. Congress set up that agency to assure that federal employees would be protected from retaliation when they attempt to “blow the whistle” on misconduct within their agency.
A lower federal judge in Washington, D.C., temporarily blocked Dellinger’s firing, and that order is due to expire next Wednesday. The judge kept Dellinger in office until a hearing to explore the dispute further can be held next Wednesday. If that hearing results in a more definitive ruling by the judge, that apparently would set the stage for the Supreme Court to get involved again.
Although the Court’s two-page order on Friday did not explain the five-day delay, it apparently was the result of the Court’s unwillingness to take broader action when all that was technically at stake at this point was a temporary, short-duration order that in no way settled the legality of Dellinger’s dismissal. The majority probably was reluctant to set a precedent that could lead to a flood of appeals to the higher courts from temporary orders by lower-court judges. Normally, such a temporary orders at the first level of the federal courts cannot be appealed.
Justice Neil M. Gorsuch, in a separate opinion joined by Justice Samuel A. Alito, Jr., wrote that those two would have granted the President’s request to enforce the firing while the case unfolds further. Those two stressed that they were taking no position now on how the case should ultimately be decided, although they expressed strong doubt about some aspects of the lower=court judge’s order in this case.
Justices Sonia Sotomayor and Ketanji Brown Jackson said in a one-sentence note that they would have turned down the President’s request to carry out Dellinger’s firing. They did not explain.
Although the Court did not reveal the votes of the other five Justices, it would have taken the votes of five to take the action that the Court did, however narrow it was. That would indicate that the order had the approval of Chief Justice John G. Roberts, Jr., and Justices Amy Coney Barrett, Elena Kagan, Brett M. Kavanaugh and Clarence Thomas. That lineup on Friday would not necessarily be repeated whenand if the Court takes further action.
A rapidly lengthening list of lower courts have been issuing temporary orders that have blocked a wide range of Trump’s new Executive Orders, and some of those could be reaching the Supreme Court soon.
