In my last post, I discussed Acting Solicitor General Sarah Harris’ welcome stand in favor of overturning the Supreme Court’s decision in Humphrey’s Executor v. United States (1935), which for so long has supported the growth of an unaccountable federal bureaucracy by limiting the president’s removal power. On Sunday, Harris asked the Supreme Court to vacate a temporary restraining order issued on February 12 by the D.C. district court in Bessent v. Dellinger, mandating that Hampton Dellinger continue to head the Office of Special Counsel even though President Trump had tried to remove him.

On Saturday, a 2–1 panel of the D.C. Circuit had denied the administration’s emergency motion to stay the TRO or alternatively provide mandamus relief. The majority focused on the procedural question of the general lack of appealability of a TRO without getting into the likelihood of success on the merits. The question on the merits is naturally far more consequential, and Judge Greg Katsas explored it in his dissent.

The special counsel was created as part of the Civil Service Reform Act of 1978 and possesses broad powers to investigate and enforce a host of “prohibited personnel practices” within the federal government. The special counsel serves a five-year term under the statute and may be removed “only for inefficiency, neglect of duty, or malfeasance in office.”

“An injunction preventing the President from firing an agency head—and thus controlling how he performs his official duties—is virtually unheard of,” Katsas noted. This injunction “deeply intrudes into the core concerns of the executive branch”—a reason he found the TRO appealable. “As the Supreme Court has long recognized,” the president’s Article II power includes “the power to remove executive officers at will.” It was unnecessary to delve into Humphrey’s Executor, an exception to that rule in the context of multimember commissions. “[T]wice in the past five years,” in Seila Law LLC v. Consumer Financial Protection Bureau (2020) and Collins v. Yellen (2021), “the Court has held that Congress may not exempt ‘an agency led by a single director’ from the President’s at-will removal power.” And while those two recent precedents did not specifically deal with the special counsel, whose executive functions are more limited than those of the directors in those cases, he is not an inferior officer, and there is no persuasive basis for distinguishing Seila Law or Collins. As Katsas noted, “Collins held that the constitutionality of a removal restriction does not ‘hinge[]’ on ‘the relative importance of the regulatory and enforcement authority of disparate agencies’ that wield executive power.”

I venture no prediction as to how the Supreme Court procedurally will handle this case at this stage. The TRO lasts 14 days, so it will expire on February 26. But the merits of the administration’s case are strong, as even some of its outspoken critics (see, e.g., Steve Vladeck) begrudgingly acknowledge. Whenever this case is considered on the merits on appeal, it will provide another opportunity to bolster the separation of powers and deliver a blow for a more accountable federal administrative state.