UJ
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President Donald Trump is turning to the Supreme Court for the first time during his second term, employing an emergency appeal to urge the justices to allow him to dismiss the head of a government ethics oversight agency.
The case, Bessent v. Dellinger, could ultimately clarify whether Congress has the ability to establish independent agencies that are shielded from presidential influence, or if presidents have the authority to terminate anyone perceived as a potential adversary.
This development comes as Trump is working to centralize authority within the federal government, dismissing federal officials who pose a challenge to his authority and attempting to halt federal spending that Congress mandated.
Here’s a closer look at the case and its significance:
At the heart of the issue is Hampton Dellinger, appointed by President Joe Biden in 2023 to oversee the Office of Special Counsel for a five-year term, confirmed by the Senate early last year.
The Office of Special Counsel—distinct from special counsels like Jack Smith or Robert Mueller, who are tasked with politically sensitive Justice Department investigations—addresses whistleblower retaliation and operates as an independent agency. Established during the Carter administration, Congress stipulated that the special counsel can only be dismissed “by the president for inefficiency, neglect of duty, or malfeasance.”
On February 7, the director of the White House Presidential Personnel Office terminated Dellinger via a brief email, which did not reference any of the necessary for-cause criteria mandated by Congress.
“The OSC’s independence does not hinder the president’s substantive regulatory agenda; it safeguards and guarantees whistleblowers’ protections,” Dellinger’s attorney remarked in a recent court filing. “If the individual tasked with safeguarding whistleblowers from retaliation is himself completely exposed to retribution for pursuing politically charged or inconvenient cases, then the OSC’s purpose in protecting whistleblowers may falter when it’s most critical.”
Dellinger’s case could have wider repercussions beyond his office since Trump has previously dismissed officials from independent agencies with similar legal safeguards, including the former chair of the National Labor Relations Board and a member of the Merit Systems Protection Board. Additionally, many other independent agencies could be impacted by the Supreme Court’s decisions, ranging from the Federal Trade Commission to the Federal Reserve.
Congress granted these boards autonomy to ensure decisions are made somewhat insulated from political currents. For example, during his first term, Trump often pressured the Federal Reserve to reduce interest rates, which the board largely ignored. Although lower rates can increase stock prices and make borrowing cheaper—potentially enhancing a president’s popularity—they can also contribute to increased inflation.
The Office of Special Counsel investigates and prosecutes claims of civil service law violations and acts as an independent body where federal employees can report wrongdoing without fear of retaliation from their agency leaders. The Merit Systems Protection Board can handle cases if disputes between employees and the government cannot be resolved directly.
Although relatively obscure outside federal circles, both boards could play a pivotal role in curtailing Trump’s attempts to significantly downsize the federal government.
Supporters of Trump argue he was elected to reform and reduce the federal government. As the head of the executive branch, he contends he should have the authority to dismiss federal officials at his discretion.
“This court should refrain from allowing lower courts to encroach upon executive power by mandating the president to retain an agency head against his wishes,” Acting Solicitor General Sarah Harris, representing the Trump administration at the Supreme Court, asserted during her emergency appeal this past weekend.
However, Trump is also engaging in a larger legal confrontation regarding whether a president should have total authority over the executive branch, or if Congress can establish independent federal agencies to protect them from political influence. This dispute has unfolded over decades, and several conservative justices on the Supreme Court have indicated they might align with Trump’s fundamental position.
The issue of for-cause protections for federal officials has been a contentious topic. Even though President Jimmy Carter signed the law establishing the special counsel, his own Justice Department once expressed doubts about the constitutionality of those protections.
Dellinger’s case partly hinges on the foundational 1935 precedent, Humphrey’s Executor v. US, which grants Congress the authority to require presidents to justify their dismissal of board members overseeing independent agencies.
However, the Supreme Court’s conservative justices have distanced themselves from this ruling in recent years, especially highlighted in a 2020 decision involving the Consumer Financial Protection Bureau. In Seila Law v. CFPB, the court determined that protections for the CFPB’s director violated separation of powers principles. This contentious agency, initially proposed by Massachusetts Democratic Senator Elizabeth Warren, was formed in response to the 2008 financial crisis and has enacted consumer-friendly regulations on mortgages, car loans, and credit cards.
Chief Justice John Roberts, expressing the majority opinion, emphasized that a president’s power to “remove – and therefore supervise – individuals who exercise executive power” is rooted directly in the Constitution.
“The CFPB director lacks a boss, peers, or constituency,” Roberts noted. “Nonetheless, this director possesses extensive rulemaking, enforcement, and adjudicatory authority over a substantial portion of the US economy.”
In a significant highlight from past court filings, Roberts mentioned the Office of Special Counsel and, notably, differentiated it from the CFPB.
The special counsel “holds only limited authority to enforce specific rules overseeing federal government employees,” Roberts explained. “It does not impose regulations on private entities or carry regulatory power akin to the CFPB.”
The court’s 5-4 ruling maintained the Humphrey’s decision intact, with Roberts indicating it only pertains to independent agencies led by a single director rather than multi-member boards. Nevertheless, some justices have openly advocated for the repudiation of Humphrey’s.
Conservative Justice Clarence Thomas, supported by Justice Neil Gorsuch, referred to the 1935 ruling as a “direct threat to our constitutional structure and, consequently, the freedoms of the American populace.”
It is crucial to note that the emergency appeal regarding Dellinger’s dismissal is reaching the Supreme Court under urgent circumstances.
Given this urgency, the court may resolve the case expeditiously without extensively addressing these broader issues concerning the constitutionality of for-cause protections.
In Dellinger’s situation, a federal district court issued a temporary restraining order preventing the Trump administration from enforcing the dismissal for several weeks. Generally, such temporary orders are not subject to appeal.
By proceeding with an appeal, Trump is also challenging the courts on their procedural protocols. Even if the Supreme Court ultimately supports Trump in Dellinger’s case later, it might rule against the administration on procedural grounds in this initial engagement.
The US Circuit Court of Appeals for the DC Circuit determined in a 2-1 ruling on Saturday night that the temporary order permitting Dellinger to stay in his position was not subject to appeal. The court stated that “reviewing such an order would conflict with governing legal standards and be ill-conceived.”
The two judges supporting the majority in that ruling were appointed by Biden. A third judge, nominated by Trump, expressed that he would have approved the government’s request to negate the lower court’s ruling that temporarily blocked Dellinger’s removal.
If the Supreme Court concurs with the appellate court, a central question for legal analysts is whether any of the justices will issue opinions providing insight into their perspectives regarding the case’s merits. Such opinions could hint at the direction of the larger legal battle concerning Trump’s actions.
The Supreme Court will be closed on Presidents’ Day Monday. The Justice Department’s appeal is likely to be added to the court’s docket on Tuesday, and the court could act relatively quickly, potentially issuing a ruling within a few days.
While Dellinger’s situation is the first to reach the Supreme Court from Trump’s contentious second term, it will certainly not be the last. Furthermore, it is not the most prominent legal battle currently navigating the federal courts.
Over 60 lawsuits are ongoing, including challenges to the president’s attempts to cancel birthright citizenship via executive action and to suspend congressionally approved spending. Additionally, various lawsuits accuse the administration of infringing upon privacy laws and other protections by allegedly permitting affiliates of Elon Musk’s Department of Government Efficiency access to tightly restricted government IT infrastructure.
Many of these cases are likely to ascend to the Supreme Court’s emergency roster in the weeks ahead. Although Trump appointed three members of the current conservative majority—Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—neither his appointees nor the court as a whole has persistently sided with him.
UJ’s Elisabeth Buchwald, Tierney Sneed, and Bryan Mena contributed to this report.
