Supreme Court declines Trump's emergency bid to immediately fire head of watchdog agency
WASHINGTON – The Supreme Court on Friday declined to let President Donald Trump immediately fire the head of a government ethics watchdog agency while a challenge to the firing moves forward.
It's the first time the Supreme Court weighed in on the dozens of lawsuits challenging the blizzard of actions Trump has taken in his first weeks in office as he’s tried to reshape the government and consolidate power.
The court postponed deciding until next week whether to grant Trump's emergency request to lift a judge's order reinstating Hampton Dellinger as head of the Office of Special Counsel. That order is set to expire Feb. 26 unless extended by U.S. District Judge Amy Berman Jackson after a hearing.
The court said it would put Trump's request on hold until that hearing.
Two liberal justices − Sonia Sotomayor and Ketanji Brown Jackson said they would have denied Trump's request. Two conservative justices − Neil Gorsuch and Samuel Alito − said they would have granted it.
The Justice Department asked the court to intervene after Jackson temporarily reinstated Dellinger days after Trump fired him.
The order from Jackson, which she was scheduled to reconsider after hearing arguments from both sides later this month, is usually not an appealable action at this stage of the litigation. The U.S. Circuit Court of Appeals for the D.C. Circuit, in a 2-1 decision, said it could not yet review the challenge.
But the Justice Department argued the issues were too important to wait for further developments, calling the case an “unprecedented assault on the separation of powers.” To back up that point, the Department quoted from the court’s decision last year on presidential immunity in which a majority of justices said courts can’t examine the president’s actions related to powers the Constitution gave exclusively to the president.
The Justice Department told the Supreme Court that by not intervening, it would effectively "embolden" lower courts to continue to block the president “from undertaking myriad other actions” he’s allowed to do under the Constitution.
Lawyers for Dellinger said Trump is trying to create a “rocket docket straight to this court, even as high-stakes emergency litigation proliferates across the country.”
“To accept the government’s position here would inevitably invite more of the same,” they told the court.
Dellinger’s office protects federal workers from retaliation, particularly whistleblowers. He was appointed by then-President Joe Biden and confirmed by the Senate for a five-year term that was set to expire in 2029. The agency is not related to special counsels like Jack Smith who are appointed by the Justice Department to oversee certain investigations.
Dellinger was fired via email on Feb. 7.
The Supreme Court has issued various rulings in the past century about presidents’ ability to remove the heads of various independent agencies. In the most recent decisions, the court has moved toward given presidents more control.
Still, Jackson, the district judge, said under federal law, Dellinger can be fired only for "inefficiency, neglect of duty, or malfeasance in office."
"This language expresses Congress's clear intent to ensure the independence of the Special Counsel and insulate his work from being buffeted by the winds of political change," Jackson wrote when temporarily reinstating Dellinger.
The Trump administration argues those protections are unconstitutional under the most recent Supreme Court decisions about the removal of leaders of independent agencies.
Trump has fired other heads of independent agencies with legal protections similar to Dellinger’s and has gotten rid of independent watchdogs within agencies without the required Congressional notice for removing an inspector general.