Appeals Court Upholds Trump’s Firing of Head of Special Counsel Office — for Now

A small but important victory for the president

T he D.C. Circuit federal appeals court has vacated the lower court’s effort to block President Trump from firing Hampton Dellinger, head of the Office of Special Counsel that enforces civil service protections for federal employees. In the interim, Dellinger and other Biden-appointed officials, using the reprieves from termination they’ve been given by Obama-appointed judges, have continued to put up roadblocks to Trump’s effort to pare back the administrative state.

We have extensively covered the litigation over the president’s firing of Special Counsel Dellinger. (See Monday’s post, citing prior posts.) Last night, a three-judge panel of the D.C. Circuit (a Bush-41 appointee, an Obama appointee, and a Trump appointee) issued a temporary stay that nullifies Judge Amy Berman Jackson’s reinstatement of Dellinger while the Trump administration’s appeal of the case is pending. The panel also fast-tracked the appeal so that it will be fully submitted and ready to be argued shortly after April 11 (the Trump Justice Department’s brief is due in about two weeks, on March 21).

This is a small but important victory for the Trump administration. It reestablishes the default constitutional assumptions that the president may fire at will a government officer who wields executive power, and that any judicial interference with the president’s Article II authority is extraordinary and must be conclusively justified.

That does not necessarily mean Trump will prevail in the end (although, in my opinion, he should). It does mean, however, that the status quo until the case is decided is that the chief executive may remove a subordinate executive officer — a judge may not use a restraining order to undo the president’s action. Judge Jackson had turned this assumption on its head, ruling that the judiciary, not the president, would decide which official may exercise the president’s power while the case is pending (i.e., until the judiciary gets around to deciding it).

Trump’s firing of Biden-appointed Democrats, such as Dellinger, is hardly norm-shattering. Upon taking office in 2021, Biden cleaned house of Trump appointees. It has become customary for new presidents of one party to remove executive officers appointed by the opposition party. That trend took hold in 1993 when President Clinton fired all Republican-appointed district U.S. attorneys (except one, who was retained at the request of a Democratic senator). Ordinarily, progressives would have howled that the four-year terms conferred on U.S. attorneys were a congressional grant of “independence” intended to insulate law enforcement from grimy politics; but Clinton was a Democrat, so progressives decided the Constitution’s framework, in which the chief executive gets to decide who wields executive power, wasn’t so bad after all.

After receiving notice that President Trump had fired him, Dellinger immediately filed a lawsuit demanding to be reinstated. As special counsel, Dellinger undeniably wielded executive power and was thus removable at will by the president. Nevertheless, he contends that the Office of Special Counsel is an “independent” agency (i.e., that Congress made it independent of the executive), the very purpose of which is to be a check on the president.

This is the progressive theory of the administrative state: The federal workforce is an amalgam of “career” employees — whether assigned to independent agencies or installed in executive agencies covered by congressional civil service protections — who altruistically serve the public under legal and ethical standards and must be insulated from “political interference” (the progressive pejorative term for supervision by the elected official who is politically accountable to the public).

In the post-Watergate era, an overwhelmingly Democratic Congress endeavored to chip away at “the imperial presidency.” The term is drawn from the title of a 1973 book by Arthur M. Schlesinger Jr. that was popular among Democrats. Despite having elected FDR four times, they suddenly decided that the executive branch was too “imperial” when Richard Nixon ran it.

Among several statutes enacted to restrict presidential power is the 1978 Civil Service Reform Act, which codified civil service protections for federal employees. To adjudicate controversies related to these protections, the act established both the special counsel post and the Merit Systems Protection Board (MSPB). Under this legislation, Dellinger argues that (a) he has a five-year term, which demonstrates that Congress intended his post to be shielded from the vagaries of electoral politics; and (b) the president may remove him from office only for cause — specifically, for (1) inefficiency, (2) neglect of duty, or (3) malfeasance in office. Because Trump fired him without cause, Dellinger contends his removal is illegal.

The Trump administration counters that the civil service laws are unconstitutional to the extent that they restrict the president’s authority to fire at will officials who exercise executive power. As we’ve discussed, the Trump Justice Department also posits that the Supreme Court’s 1935 Humphrey’s Executor decision — which held that Congress may create “independent” agencies and restrict the president’s authority to remove officers who wield executive power — should be overruled (consistent with the trajectory of recent cases and the analyses of originalist justices).

Judge Jackson, an administrative state devotee, sided with Dellinger in the 67-page opinion she issued on Saturday night. That is the ruling the circuit has now stayed.

In the meantime, Jackson and Judge Rudolph Contreras, her fellow Obama appointee to the federal district court in Washington, D.C., helped Dellinger and his fellow Biden appointees thwart Trump’s termination of other federal employees.

Simultaneous to his firing of Dellinger, Trump also removed four other officials whose jobs similarly insulate the federal workforce from presidential control and political accountability. These included Cathy A. Harris, the Biden-appointed chairwoman of the aforementioned MSPB. Harris also challenged her removal. Just as Judge Jackson ordered Dellinger reinstated, Judge Contreras ordered Harris reinstated in a 35-page opinion issued on Tuesday.

As we’ve detailed, Dellinger used the reprieve he got from Jackson to petition the MSPB on behalf of six federal employees who were removed during their “probationary” period — the first year or two of employment, when a federal worker is not yet fully vested in civil service protection. Dellinger made the application to the MSPB’s then–vice chairman, Raymond A. Limon, another Biden appointee.

Limon retired last Friday (apparently before Trump could get around to firing him). In one of his last official acts, however, Limon had agreed with Dellinger both that (1) the half dozen employees in question had been illegally removed (reasoning that civil service protection requires individualized consideration of workers, whereas the Trump administration is blanket-firing probationary employees), and (2) these six employees might just be the tip of the iceberg since thousands of federal employees on probation are being removed by the Trump administration via its Department of Government Efficiency (DOGE) project, headed by Trump White House adviser Elon Musk.

And now — whaddya know! — Chairwoman Harris has ordered the Trump administration to reinstate close to 6,000 federal employees at the Agriculture Department. They were on probation, and their removal had been orchestrated by DOGE.

Obviously, the administration will appeal Contreras’s reinstatement of Harris. Harris, not surprisingly, has filed an amicus brief in the D.C. Circuit in support of Dellinger.

In the meantime, as the cases slog through the courts, progressive Obama- and Biden-appointed bureaucrats and judges will continue to defend the administrative state from the Trump purge. The Trump DOJ will argue that the Constitution empowers the president to run the executive branch, including any officials in so-called independent agencies who wield executive power. The progressives will counter that nearly a century of administrative state governance has established the federal bureaucracy as a fourth branch of government — unaccountable to the president, the voters . . . or anyone else.

In the end, the Supreme Court will have to decide, and probably soon.