UPDATED Sunday evening:
Arguing that federal judges across the nation are wrongly blocking major policies of the new Trump Administration, Justice Department lawyers rushed to the Supreme Court on Sunday seeking emergency help. The 35-page filing asked for an immediate order to undo, temporarily, a trial court judge’s order reinstating an official fired by President Trump earlier this month. The official was removed without any reason other than the President’s wishes.
In addition, the filing asked the Justices to treat the actions of that judge as if they were a final and binding order and block the judge from enforcing those demands. A federal appeals court late Saturday had refused a similar plea, finding that it was premature and rejecting the argument that it was the equivalent of a final decision against the President’s power to remove officials of the Executive Branch.
That appeals court was divided 2-to-1. The arguments made by the dissenting judge on that panel provided a good deal of the reasoning the Justice Department lawyers put forward in their filing with the Justices.
This dispute, as it reaches the Court, is focused specifically on the legality of Trump’s removal of Hampton Dellinger, the head of a special government agency that protects the legal rights of federal government employees. including those who engage in “whistleblowing” to expose wrongdoing in their agencies. Dellinger holds a job that supposedly was to last for five years; he has been in the post for less than a year.
Under the trial judge’s temporary order, Dellinger must be allowed to continue heading that office despite Trump’s removal and despite the fact that Trump has sought to install a new head of that body. The judge will hold a key hearing in the case on February 26 — a delay that the new Court filing strongly protested.
Trump has met with judicial orders. issued across the nation in the past few weeks, blocking some of the new Administration’s most controversial policies. The fight over Dellinger’s post is the first to reach the highest court.
As a key part of the arguments made in the new filing, Justice Department attorneys complained to the Court about the lengthening list of orders by lower courts against Trump’s official actions through a long list of Executive Orders. The court order issued by the judge in the Dellinger case, the filing said, “exemplifies a broader, weeks-long trend in which [those] challenging President Trump’s initiatives have persuaded district courts to issue [temporary orders] that intrude upon a host of the President’s Article II powers.”
It added: “This Court should not allow the judiciary to govern by temporary restraining orders and supplant the political accountability the Constitution ordains.”
The Justices will return to the bench tomorrow, after a four-week mid-winter recess. The new Justice Department filing will go first to Chief Justice John G. Roberts, Jr., who has the power to act on emergency matters in federal court jurisdiction in Washington, D.C. Roberts’ first action is likely to be an order to Dellinger’s lawyers to file a response to the government’s maneuver.
Roberts has the power to act on his own, or to share the action with his eight colleagues. Because the new plea is in the form of an emergency request, some action is expected quickly. The Court has complete discretion to reject the request or to act on it, with a wide range of options.
In taking the dispute directly to the Supreme Court, the Administration chose to bypass the option of asking the full, 11-judge appeals court to reconsider the Saturday night action by the three-judge panel.
Below is an earlier report on this controversy.
President Trump has been in office only 27 days, but he may soon face a historic constitutional challenge in the Supreme Court: a test of his authority to fire any government official for any reason, or even for no reason at all.
If that authority were to be upheld, it could further embolden the new President as he moves swiftly to take unchecked power over all of the work of the Executive Branch, including the functioning of all of the many federal agencies that Congress – over the period of 138 years – has given independence from the White House.
Probably the most important single official that potentially could be affected might be the head of the Federal Reserve Board, Jerome H. Powell, who has vast authority over the nation’s money and credit system. Trump and Powell appear to be seriously at odds over the President’s demand that the Fed lower interest rates to boost the economy; Powell is resisting the demand.
Powell, in office since 2018, has another 15 months remaining in his second term as Fed chair. But his hold on that office, like that of all other officers in the Executive Branch, depends on the scope of the President’s power to remove them “at will.” If Powell were to be fired, it could have a devastating effect on the nation’s entire economy, including roiling the stock market.
The broader underlying controversy that Trump has stirred up since his inauguration by waves of sudden firings probably will not wait for the President to act against Powell. An order issued late Saturday night by a federal appeals court in Washington, involving one of Trump’s firings, already is setting the stage for a major test in the Supreme Court.
By a 2-to-1 vote, the appeals court rejected a plea by government lawyers to allow Trump to carry out his plan to fire a federal officer who heads a little-known agency. the Office of Special Counsel. That agency, created by Congress in 1978 to protect the employment rights of federal government workers, is now headed by Hampton Dellinger, who is still in the first year of a five-year term. Under the law governing that agency, its leader can be removed by the President “only for inefficiency, neglect of duty, or malfeasance in office.”
Trump ordered Dellinger’s immediate firing through a brief e-mail from a White House aide early this month, giving no reasons. Dellinger promptly went to federal court and, so far, remains in the job temporarily under court order. Saturday night’s order by the split appeals court panel marked the second time that that court has refused to facilitate the firing.
In the Trump Administration’s latest plea to that court, it asked for a swift ruling, saying that, if the firing were to remain blocked by that court, it would quickly take their demand on to the Supreme Court. They claimed that their temporary defeat in the trial court had caused “extraordinary harm” to the President’s constitutional powers as head of the Executive Branch.
The two judges in the appeals court majority, Circuit Judges J. Michelle Childs and Florence Y. Pam, issued a 15-page ruling declaring that their court does not have jurisdiction to get involved at this stage, because the trial court has not yet issued a final ruling of the kind that can be appealed. The majority also refused, separately, to order the trial judge to remove Dellinger from office now.
Their third colleague, Circuit Judge Gregory G. Katsas, issued a 12-page dissenting opinion, arguing that the court case already has gone far enough to seriously interfere with the President’s constitutional power to remove officers within the Branch that he heads. Judge Katsas interpreted two Supreme Court rulings, in 2000 and 2001, as validating the President’s actions to fire Dellinger summarily. Neither of those precedents involved the agency that Dellinger heads.
The dissenting judge also borrowed heavily from the Supreme Court’s decision last July 1, creating a new form of constitutional immunity for Trump and other Presidents to criminal prosecution. Katsas wrote: “The President is immune from injunctions directing the performance of his official duties, and Article II of the Constitution grants him the power to remove agency heads….The extraordinary character of the [trial judge’s] order at issue here – which directs the President to recognize and work with an agency head whom he has already removed – warrants immediate appellate review.”
Trump has actually named a temporary replacement for Dellinger, but that has not ended the legal dispute still unfolding in court.
With the appeals court majority refusing to act now, Trump’s lawyers have two options: ask the full 11-member appeals court to consider the case, or go on directly to the Supreme Court. In seeking action in Trump’s favor, his lawyers had mentioned only the option of going straight to the Supreme Court.
The Trump Administration earlier in the week had notified Congress that it was planning to ask the Supreme Court, in an unspecified case, to overrule a 1935 Supreme Court decision that the President did not have the constitutional authority to remove a member of an independent regulatory agency, without significant reasons for the firing. Several of the Court’s current conservative Justices have been critical of that New Deal-era ruling, issued in the case of Humphrey’s Executor v. United States.
If the Dellinger dispute does go next to the Supreme Court, the Court – if it opts to rule in favor of presidential power – would not necessarily overrule the Humphrey’s Executor precedent. It could simply declare that the Office of Special Counsel has to be exempted from the removal-for-cause requirement, striking down that protection and that alone.
At the same time, however, the underlying issue is one that has recurred repeatedly, and the Court could go the furthest to guide the lower courts by explicitly confronting the question of overruling that precedent.
It does have the option, though, of agreeing at this point with the appeals court that the controversy over Dellinger is not yet ready for decision beyond the trial court that so far has acted only temporarily.
