Judge delays after appeals courts declined to intervene and amid Dellinger’s effort to block more firings of federal employees.
A federal judge in Washington, D.C., says she needs three more days to decide whether President Trump has the power to fire a federal officer who wields the president’s power.
The gamesmanship on this one is remarkable.
As I recapped in an earlier post today, Judge Amy Berman Jackson is an Obama appointee to the federal district court. On February 12, she issued a temporary restraining order (TRO) blocking the president from firing Hampton Dellinger, a Democrat who heads the Office of Special Counsel.
The OSC enforces and prosecutes violations of various laws enacted to insulate employees, whistleblowers, and other members of the federal workforce from control by the executive branch. Most prominent among these enactments is the Civil Service Protection Act, championed by progressive Democrats in the post-Watergate era. Hampton Dellinger, a Democrat, was appointed to the OSC post by President Biden in 2023, after serving as head of the Biden Justice Department’s Office of Legal Policy. He is the son of the late Walter Dellinger, who ran the Clinton Justice Department’s Office of Legal Counsel (OLC) before becoming its acting solicitor general.
The Constitution vests all executive power in the president, who thus has unrestricted authority to fire officers of the United States delegated to wield his power. As I recently discussed (here), Democrats and other progressive enthusiasts of the administrative state construe the Supreme Court’s discredited 1935 decision in Humphrey’s Executor v. United States to shield from presidential control members of so-called independent agencies that, besides executive authority, exercise powers the Court incoherently referred to as “quasi-legislative” and “quasi-judicial.”
Notwithstanding Judge Jackson’s attempts to minimize the overwhelmingly executive nature of Dellinger’s OSC remit, there is no doubt that his principal functions — law-enforcement and prosecution — are quintessentially executive. The president must be able to fire him at will, and any statutes that purport to forbid removal absent a showing of inefficiency, neglect of duty, or malfeasance in office are unconstitutional.
Jackson’s TRO should have been vacated. But because she scheduled a hearing to take place two weeks after its issuance (i.e., today), and because there are questions whether appeals courts have jurisdiction over a challenge to a TRO (although there are other ways of getting at it), a divided three-judge panel of the D.C. Circuit appeals court opted not to intervene. So, then, did the Supreme Court (over the objections of Justices Neil Gorsuch and Clarence Thomas).
Dellinger promptly exploited this reprieve by endeavoring to block Trump’s firing (through Elon Musk’s DOGE initiative) of six other federal employees — laying the groundwork to shield thousands more from termination. In short order, the Merit Systems Protection Board (MSPB), in a ruling by Biden-appointee Raymond A. Limon, backed Dellinger and ordered the reinstatement of fired employees.
And now Judge Jackson has schemed additional delay. As the Washington Post reports, at today’s contentious court hearing, she said she needed another three days (until Saturday) to rule on Trump’s attempt to fire Dellinger.
This is ridiculous. Jackson has had two weeks. She issued the TRO only after finding that she was already inclined to rule against the Trump administration on the merits. And her commentary at the hearing elucidated that she is fully bought in to the progressive premises that the OSC is an “independent” agency shielded from executive control, and that Dellinger’s “actual job is to be a check and balance on the president.” The judge pressed the Justice Department for an explanation of why Dellinger’s termination would be in the public interest; but as a matter of constitutional law, the president can fire an officer who wields the president’s power because, say, it’s Wednesday and he feels like firing somebody. Trump needn’t have a reason that Amy Berman Jackson, in her infinite wisdom, deems to be in the public interest.
Obviously, Jackson calculates that if the appellate courts did not intervene when she was thwarting Trump for two weeks, they are not going intervene in the next three days. By the time she rules, it will be the weekend, which will make an instant appeal difficult. In the meantime, who knows what more Dellinger and the MSPB can do to block the chief executive’s effort to pare down and rein in the executive branch?