Russell Vought and JD Vance are getting their wish: a chance for SCOTUS to rule on a possible expansion of Trump’s executive powers. According to the NYTimes, it is happening via an emergency appeal by the DOJ of a temporary restraining order on the firing of Hampton Dellinger, the head of the Office of Special Counsel. Dellinger brought the case, saying that his dismissal was illegal. It is a critical test of both the SCOTUS presidential immunity ruling, the constitutional issues around the separation of powers, and Vought's far right-wing unitary executive theory. This has significant implications for our democracy and the rule of law.

Earlier today, I wrote about Trump’s provocative social media post, "He who saves his Country does not violate any Law." It now looks like Trump’s post and JD Vance’s teasers were set up to get out ahead of this case, staking out their position for the MAGA base even though they have already had two losses in the Dellinger case in the DC Court and the DC Circuit Court. But the Sunday timing of the DOJ filing to SCOTUS over a holiday weekend points to their desire to submerge the case under the “flood the zone with shit” strategy. Trump wants the news cycle focused on his strongman “success” for starting bilateral peace talks with Putin over divvying up Ukraine (without Zelensky). He doesn’t want the focus on a potential loss with SCOTUS.

Not to be confused with Special Counsels like Jack Smith, the head of the Office of Special Counsel is a 5-year appointment that requires Senate confirmation. The office is responsible for protecting federal workers from illegal personnel actions like firing civil service workers without mandated notice and cause, and protecting whistleblowers from retaliation. It is an independent federal investigative and prosecutorial agency established by Congress under four federal laws: the Civil Service Reform Act, the Whistleblower Protection Act, the Hatch Act, and the Uniformed Services Employment & Reemployment Rights Act (USERRA).

This gets to the heart of the legality of the administration’s firing of heads of agencies where Congress legislated in a degree of independence through terms of office that bridge administration and that terminations are for cause, like the FBI. It is not clear how this could impact the legality of the mass firings of civil service employees, which require due process and cause. Dellinger was an appointee that required Senate confirmation.

Dellinger was appointed head of the OSC by Joe Biden to a five-year term in 2024. The timeline of recent events according to Just Security's Legal Tracker is as follows:

Friday, February 7, 2025, at night: Dellinger received a two-sentence email from Sergio Gor, informing Dellinger that he was terminated, effective immediately, and stating no cause for such termination.

Monday, February 10, 2025: Dellinger files a lawsuit arguing his termination was illegal because he can be terminated only for inefficiency, neglect of duty, or malfeasance in office. Dellinger seeks an order that he may not be removed and is entitled to backpay. District Judge Amy Berman Jackson issues an administrative stay that reinstates him, through midnight Thursday, February 13 while she considers Dellinger’s request for a temporary restraining order. Dellinger says he is going back to work. The administration says it will appeal the order.

Tuesday, February 11, 2025: The administration appeals Judge Berman Jackson’s order with an emergency motion.

Wednesday, February 12, 2025: The DC Circuit dismisses the administration’s appeal for lack of jurisdiction. Judge Berman Jackson grants the temporary restraining order ordering that Dellinger shall continue to serve as Special Counsel and prohibiting defendants from denying him the resources and materials of his office.

Thursday, February 13, 2025: The administration tries to appeal again to the DC Circuit. The District Court denies the administration’s motion for a stay pending the appeal to the DC Circuit Court.

Saturday, February 14, 2025: The DC circuit rejected the administration’s appeal in a 2-1 opinion. The DC Circuit ruling states the following:

The crux of the case before the district court is whether the President had authority to remove Dellinger from his post as Special Counsel without any finding of “inefficiency, neglect of duty, or malfeasance in office,” as required by 5 U.S.C. § 1211(b). The outcome will turn on whether the statute’s constraint on the President’s removal power is constitutional: The government contends that the law is unconstitutional and can have no effect, while Dellinger asserts that the statute does not violate the Constitution and he is entitled to its protections. To determine the parties’ rights and obligations for now, until that dispute is resolved, the district court is following procedures prescribed by the Federal Rules of Civil Procedure regarding the issuance of TROs and preliminary injunctions.

The ruling by the DC Circuit hinged on the administration’s “mere claim” that there would be “extraordinary harm” if the district circuit court did not immediately review the case. Judge Gregory Katsas, Trump appointee on the 3-judge pane, dissented, saying he would have blocked Judge Berman’s ruling and allowed Dellinger to be removed from office. Citing recente Supreme Court rulings, he wrote that “Congress cannot constitutionally restrict the president’s power to remove the special counsel.”

Katsas is relying on a 2020 case involving the Consumer Financial Protection Bureau that substantially overturned the precedent from a case from 1935, “Humphery’s Executor,” that said that federal law could require that certain officials could only be removed for “inefficient, neglect of duty or malfeasance.” FDR had tried to remove Humphrey because Humphrey’s actions were not aligned with Roosevelt’s. FDR lost. But in 2020, the CFPB case SCOTUS revisited Humphrey with a 5-4 ruling that the president could remove the CFPB’s director for ANY reason, saying that the restriction on the power to terminate violated the separation of powers and that the President could remove the CFPB director for any reason. However, it did not overturn all of the 1935 case. The devil is in the details.

Chief Justice Roberts, writing the majority opinion in the 2020 CFPB case, said that

“In our constitutional system the executive power belongs to the president, and that power generally includes the ability to supervise and remove the agents who wield executive power in his stead.”

Justice Kagan, writing for the liberal wing (RGB was still alive), dissented, writing that

The Constitution did not address the scope of the president’s power to fire subordinates. Congress should therefore be free to grant agencies “a measure of independence from political pressure.”

Dellinger will be a critical test of whether Roberts will try to salvage his legacy and some credibility for SCOTUS by reining in Trump or we are indeed in a post-constitutional mode of governance with the all-powerful chief executive of Vought’s and Vance’s dreams.

And just like that, democracy may die.

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