Trump Should Win at Supreme Court — If His Provocations Haven’t Spooked the Justices

P resident Trump should be on the verge of a significant victory in his worthy campaign to rein in the administrative state — i.e., to restore constitutional order. He has a strong case on the law. The only question is whether his recent suggestions that he need not follow the law, and his Justice Department’s intimations that politicized law enforcement is still in vogue, will give the Supreme Court pause about reinforcing the law — and clarifying the breadth of executive authority — to his benefit.

Less than a month into his second administration, progressive activist judges have foolishly accelerated to the justices’ consideration a dispute that should be a lay-up for the administration: a test of what ought to be the president’s undeniable constitutional power to remove at will single heads of agencies that wield executive power. At issue is President Trump’s firing on February 7 of Hampton Dellinger, the head of the Office of Special Counsel (OSC).

A point of clarification: The OSC differs from special counsels appointed by the Justice Department in conflict-of-interest situations (who customarily refer to themselves as special counsel’s offices). The Civil Service Reform Act of 1978 established the OSC to investigate and prosecute violations of statutes covering the federal workforce.

As I related in a recent two-part series (here and here), the post-Watergate Congress, dominated by Democrats, attempted to usurp executive power by recasting federal agencies, and the bureaucratic personnel who staffed them, as “independent” of executive oversight and insulated from constitutional separation-of-powers principles. Among the ways they did this was to place limits on the president’s authority to fire at will officers of the United States who exercise executive power — typically requiring, instead, that designated officials (including the head of the OSC) could not be removed in the absence of showing “inefficiency, neglect of duty, or malfeasance in office.”

Such limitations are unconstitutional. That’s part of why the president has challenged the OSC statute by firing Dellinger without citing one or more of these statutory justifications.

The whole of the executive power in our constitutional framework is vested in a single officer, the president, the lone official (other than the vice president) who is democratically accountable to voters throughout the nation. The president delegates principal officers to assist him. While they may not assume their appointed positions absent consent of the Senate (because the Constitution expressly mandates that condition), there can be no legitimate limitation on the president’s authority to terminate them. Indeed, the chief executive must be able to terminate them at will to ensure that executive power is not controlled by Congress, let alone judges; it must be directed wholly by the democratically accountable president.

Consequently, most recently in Seila Law v. Consumer Financial Protection Board (2020), the Supreme Court held that when an agency wields executive power and is led by a single leader, the president has the constitutional authority to remove the agency leader at will. The OSC undeniably wields executive power — it is the prosecutorial arm of the Merit System Protection Board, and prosecution is a quintessential executive power (as are other of the OSC’s functions, such as conducting investigations, issuing subpoenas, directing the taking of depositions, and appointing officials in the OSC). The OSC, moreover, is led by the special counsel, a single leader. Ergo, the president may fire him at will, Q.E.D.

Yet, persisting in what is already — after less than three weeks — a pattern of obstruction by progressive activist judges of legitimate presidential actions that draw the ire of Democrats, the Washington, D.C., federal courts are blocking Trump.

First, on February 12, District Judge Amy Berman Jackson, an Obama appointee, restrained the president from removing Special Counsel Dellinger and replacing him. Judge Jackson’s reasoning was specious. Drawing on the progressive playbook, she rationalized that Congress sought to ensure that the special counsel was “independent” and shielded from politics (meaning, from the change in partisan control of the White House). That, however, is precisely what the Constitution forbids: Congress has no authority to erode the president’s executive power, and the Constitution imposes political control (i.e., democratic accountability) on the exercise of that power by reposing it in the president, not unaccountable bureaucrats.

Beyond this overarching weakness in her reasoning, Jackson attempted to distinguish the OSC from other agencies as to which the Supreme Court has affirmed the president’s unreviewable removal authority — feebly contending that, although the OSC exercises enforcement authority, she didn’t view that authority as all that “substantial” because it is only exercised over government personnel, not “a broad swath of the American public or economy.” But enforcement is an executive power regardless of how widely it is wielded. On that score, the brief the Trump Justice Department submitted to the Supreme Court this weekend amusingly quotes Justice Antonin Scalia’s quip (from his legendary 1988 dissent in Morrison v. Olson) that “The Ambassador to Luxembourg is not anything less than a principal [executive] officer simply because Luxembourg is small.”

On Saturday, a divided three-judge panel of the D.C. Circuit Court of Appeals rejected the Trump DOJ’s application for an emergency stay of Judge Jackson’s temporary restraining order. In the majority were two Biden appointees, Judges Michelle Childs and Florence Pan, who did not so much defend Jackson’s rationalizations as question what the fuss is about since Jackson had agreed to hold a hearing on the restraining order she imposed in a couple of weeks (on February 26). Judge Gregory Katsas, a Trump appointee, dissented, pointing out that the courts had long recognized the president’s special status — the sole repository of executive power which the Constitution’s framework of governance requires — and that immediate review was required regarding an order that usurps his Article II power.

Judge Katsas is clearly right. The Supreme Court should take this case and give it immediate attention. It is not complicated. It implicates rudimentary separation of powers principles and the refusal of lower courts — out of patent partisanship — to apply clear Supreme Court precedent. And given some of the outlandish rulings against Trump in the past two weeks — the most notorious being Southern District of New York Judge Paul Engelmayer’s contention that executive branch officials, apparently including the Treasury Secretary himself, are unfit to scrutinize Treasury Department records (because they don’t comport with Engelmayer’s vision of what a “public servant” should be) — an emphatic statement from the justices that the president, not the judiciary, runs the executive branch, is sadly essential.

Even more regrettable is that the Court could hesitate to make such a statement, or even punt on the case for now, because Trump and his Justice Department have given them cause for pause.

Over the weekend, the president outrageously declared himself above the law — see our Mark Antonio Wright’s piece on Trump’s quoting of Napoleon’s possibly apocryphal line, “He who saves his Country does not violate any Law.” We might add the corollary: “He who asks the Supreme Court’s intercession to uphold the law should avoid claiming that the law is a trifle.”

The provocateur president’s latest antic followed hard on the Trump Justice Department’s inducement of mass resignations (including by highly regarded prosecutors who were are former clerks for some of the justices) over Trump’s dropping of a corruption case against New York City Mayor Eric Adams — an egregious deal in which DOJ would reserve the right to reinstate charges against Adams if he fails to support Trump’s immigration enforcement policies.

The president is right to demand that federal judges adhere to precedent and norms; they must not be at liberty to impose their will as they see fit. I imagine, though, that, before exercising its discretion to get involved in a controversy it could (but shouldn’t) avoid, the Supreme Court would like to be confident that the president, too, grasps the limits of his authority and realizes that the justice system’s legitimacy hinges on its integrity.