Hampton Dellinger used his court-ordered reprieve to convince a Biden bureaucrat to block the DOGE purge of more federal employees.
Over the past few days, I’ve written a couple of times (here and here) about the case of Hampton Dellinger, the head of the Office of Special Counsel whom President Trump has tried to fire — consistent with his constitutional authority to terminate at will officers of the United States who wield executive power.
Special Counsel Dellinger does so as the enforcement and prosecutorial arm of the Merit Systems Protection Board (MSPB). Yet, the president has been thwarted on what I believe are specious grounds by Judge Amy Berman Jackson, an Obama appointee to the federal district court in Washington, D.C.
Dellinger got an extended two-week lease on life, in the form of Judge Jackson’s temporary restraining order. Although the Trump Justice Department appealed, a divided three-judge panel of the D.C. Circuit Court of Appeals declined to disturb the temporary restraining order, rationalizing that it would be only two weeks and then Jackson would hold a hearing to sort things out. The Supreme Court went along with the circuit, over a strong dissent from Justice Neil Gorsuch, joined by Justice Clarence Thomas.
Rather than ride out his good fortune until the hearing, which is taking place today, Dellinger used this lease on life to make a submission to the MSPB on behalf of six other federal employees. The Trump administration had fired (through Elon Musk’s DOGE project) the six because they are still in the probationary period — the first year or so after hiring, during which federal employees are not yet vested in civil service protections.
And now, as night follows day, the MSPB has reinstated the six employees in an order issued by Raymond A. Limon, a Biden appointee to the board. As the New York Times reports, Limon concluded that there were “reasonable grounds to believe” that the relevant agencies had “engaged in a prohibited personnel practice.”
Translation: Congress, not the president, determines who gets to exercise the president’s constitutional power.
The MSPB said its reinstatement would remain in effect until at least April 10, while the Office of Special Counsel — i.e., Dellinger — continues investigating. As I noted in the last piece on Dellinger, he considered the six employees just the start. The Times echoes this hope that Dellinger’s maneuver, now affirmed by the MSPB over the president’s objection, will lead to “the restoration of thousands of jobs cut by the Trump administration.” Even if Dellinger is removed, as he should be, the six employees, and perhaps thousands others similarly situated, will contend that the MSPB’s ruling (based on Dellinger’s machinations) means their positions cannot legitimately be terminated.
I continue to wonder whether, if they had known Dellinger was going to continue acting, rather than maintain the status quo until Jackson’s scheduled hearing, the Supreme Court would have sat on its hands. If a lower court judge is clearly usurping the president’s constitutional authority under Article II, it’s no excuse to tolerate the usurpation because it’s only for 14 days. Put another way, if a court has the power to remove the president’s power for two weeks, why not two months . . . or two years? . . .
In any event, the battle between the Constitution’s separation-of-powers framework and the progressive administrative state is on. We’ll see what happens at Judge Jackson’s hearing regarding Dellinger today.