The US Supreme Court put off ruling on the case of fired Special Counsel, the improbably named Hampton Dellinger. In a ruling with dissents by four justices, the Supreme Court agreed to put off ruling on the government's appeal of the order reinstating Dellinger until the DC Circuit issues its ruling on Wednesday. "In light of the foregoing," wrote Chief Justice John Roberts for the majority, "the application to vacate the order of the United States District Court for the District of Columbia presented to THE CHIEF JUSTICE and by him referred to the Court is held in abeyance until February 26, when the TRO is set to expire."
The backstory is that President Trump fired Dellinger from his perch as head of the Office of Special Counsel. He is the sole proprietor of that office and is protected from dismissal by law except in cases of "inefficiency, neglect of duty or malfeasance in office." Dellinger sued. The trial judge issued a temporary restraining order reinstating him. The government appealed to the DC Circuit. The DC Circuit, in a 2-1 decision, but with a strongly worded dissent, upheld the TRO. The government fired off a blistering appeal to the Supreme Court. This, in my view, is part of Trump's assault on some of the case law that makes the Administrative State possible.
>BACKGROUND:
Trump Declares War on the Administrative State – RedState
Judge Orders Biden Appointee Fired by Trump Reinstated to Office – RedState
Justices Sonia Sotomayor and Ketanji Brown Jackson said they would have outright denied the Trump administration’s request. Justices Neil M. Gorsuch and Samuel A. Alito Jr. would have overturned the TRO.
The bottom line here is that SCOTUS is giving the DC Circuit the chance to make a ruling before moving ahead. Indeed, it seems to be giving the DC Circuit time to tap the brakes on this action. If the appeals court sustains the existing order, it will be dumped right back in the Supreme Court's lap as an emergency appeal by the government. If the current order is set aside but the case is allowed to proceed, then everyone has more time to think about what is going on.
My gut feeling is that, for reasons I laid out in Trump Declares War on the Administrative State, Dellinger's case is much closer to the Consumer Financial Protection Bureau case that resulted in the protection given that agency's director being tossed than it is to the safe harbor of Humphrey's Executor. Dellinger is not in charge of a "quasi-legislative" or "quasi-judiicial" organization; he wields quintessentially executive power, and to insulate him from the chief executive of the land is unconstitutional. In his dissent, Gorsuch basically said there was no legal way to reinstate Dellinger. But as Jonathan Turley said, a majority of the Supreme Court would rather this case go away than rule on the facts it offers.