Last week, I wrote about Hampton Dellinger, the head of the Office of Special Counsel that enforces the 1978 Civil Service Reform Act, among other statutes that cover the federal workforce. (Dellinger’s title in that capacity is “special counsel,” but he is not a Justice Department special counsel of the type appointed by the attorney general when a conflict of interest arises.)
President Trump has tried to fire Dellinger, but he is being blocked by an Obama appointee, Judge Amy Berman Jackson of the federal district court in Washington, D.C. Last Friday, the Supreme Court declined for now to disturb Judge Jackson’s temporary restraining order, which reinstated Dellinger at least until Jackson holds a hearing that she has scheduled for February 26 — i.e., Wednesday, two weeks after she issued the temporary restraining order. A few days earlier, a divided three-judge panel of the D.C. Circuit had similarly declined to vacate Jackson’s restraining order.
As I explained in the column, Judge Jackson’s reasoning is weak: Dellinger is an officer of the United States who wields executive power; hence, the Constitution empowers the president to remove him at will — the president need not comply with statutory restrictions that Congress has purported to impose on his removal authority. But a majority of the Supreme Court declined to intervene at this point on the ground that the Court ordinarily lacks appellate jurisdiction over temporary restraining orders (because they are customarily fleeting and thus deemed not to be orders ripe for appeal).
Given that Jackson’s hearing was scheduled only five days away, the majority declined to resort to extraordinary measures to expand its jurisdiction. It thus rebuffed, for the time being, Trump Justice Department suggestions that the Court treat the temporary restraining order as a preliminary injunction (over which it would have jurisdiction) or that it invoke the All Writs Act because Jackson is impeding a core executive power.
Justice Neil Gorsuch, joined by Justice Clarence Thomas, penned a persuasive dissent. Justice Gorsuch pointed out that a temporary restraining order is an equitable remedy and that, as the Court ruled in 1888, in In re Sawyer, a court of equity has no jurisdiction over the appointment and removal of public officers — as distinguished from remedies such as back pay, which courts have entertained. On the other hand, two of the Court’s progressive justices, Sonia Sotomayor and Ketanji Brown Jackson, indicated that they would have denied Trump’s application. They did not elaborate on why, so it’s possible they believe Congress, in the Civil Service Reform Act and other legislation, has succeeded in limiting the president’s constitutional authority over the executive branch.
<p”>I’ve argued that the constitutional stakes of Trump’s push to re-establish executive control over the executive branch after decades of progressive administrative-state incursions are high. We’re now getting a sense of how high.
Special counsel Dellinger argued to the Supreme Court and the D.C. Circuit that it made little sense to alter the status quo in his case since Jackson would be holding a hearing in just a few days. You might have assumed that meant Dellinger himself wouldn’t rock the boat, either. But you’d have been wrong.
Today, the special counsel filed requests in the Merit Systems Protection Board to prevent President Trump from carrying out what Dellinger claims are “impermissible terminations” of six federal employees who are still in their probationary periods (i.e., they haven’t served the year or two usually required under federal law before civil service protections fully vest). The Trump administration, through its DOGE office led by Elon Musk, has been taking the position that federal employees still on probation may be removed summarily. Dellinger is countering that Congress’s enactments of civil service protections require that even probationary employees cannot be removed absent some “individualized cause” — i.e., there can be no terminations en masse.
Dellinger adds that he believes many other probationary employees, beyond the six at issue today, are entitled to this same protection from being fired. He says he intends to follow up on that score.
To put a finer point on it, then: Despite lacking legitimate authority to block the removal of executive officers of the United States, the federal courts have blocked President Trump from terminating a subordinate officer who exercises executive power — i.e., power the Constitution reposes solely in the president — and that subordinate officer is using this judicial reprieve as an opportunity to block the president from removing many more subordinates of even lower rank.
If I were the Supreme Court and had stayed my hand, figuring nothing of consequence would happen before Wednesday’s hearing, I’d be pretty steamed.