Late Saturday, Washington D.C. District Judge Amy Berman Jackson ruled that President Donald Trump violated federal law in firing Hampton Dellinger, head of the Office of Special Counsel. Jackson’s decision is forceful, well-written, and arguably wrong under existing precedent. Indeed, it may have just set up an appeal that both presidents and professors have long waited for to reinforce presidential powers.
Appointed by President Joe Biden, and the son of the respected liberal scholar and Clinton acting Solicitor General Walter Dellinger, Hampton Dellinger was confirmed by the Senate for a five-year term beginning in 2024. He sued after receiving an email with a perfunctory termination notice shortly after Trump’s inauguration. The various inspector generals were also terminated and, at the time, some of us raised concerns over compliance with underlying federal statutes. The issue was not likely the outcome, but the process for such removals. However, while many objected to the helter-skelter approach to such terminations, there may be a method to this madness. Indeed, this ruling may be precisely what the Trump administration is seeking as the foundation for a major new constitutional challenge.
Dellinger’s claim is based in large part on the Civil Service Reform Act, which provides that the Special Counsel ‘may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.’ 5 U.S.C. 1211(b). The notice gave none of these grounds for the termination even though ‘inefficiency’ and ‘neglect’ are a fairly ambiguous and malleable rationale.
Judge Jackson held that the firing clearly violated the controlling statute and that the Act itself was constitutional. She emphasized that, while there are grounds for presidents to claim the power for at-will terminations, those cases have tended to be offices that carry out executive functions. Jackson described the Special Counsel as an essentially harmless office vis-à-vis executive authority.
‘Special Counsel acts as an ombudsman, a clearinghouse for complaints and allegations, and after looking into them, he can encourage the parties to resolve the matter among themselves,’ she wrote. ‘But if that fails, he must direct them elsewhere.’
She noted that earlier cases supporting the executive power to fire executive officials involved ‘restrictions on the President’s ability to remove an official who wields significant executive authority. The Special Counsel simply does not.’
Judge Jackson has a good-faith reliance on her narrow reading of existing precedent. However, it is far from conclusive and brushes over some striking conflicts with prior rulings of the Supreme Court. Jackson insisted that a contrary ruling would undermine the very point of the special counsel office, which she identified as its independence. However, that is the very point that has irked both Democratic and Republican presidents for years.
In 1978, President Jimmy Carter objected on these grounds. The Department of Justice’s Office of Legal Counsel explained that, ‘[b]ecause the Special Counsel [would] be performing largely executive functions, the Congress [could] not restrict the President’s power to remove him.’ 2 Op. O.L.C. 120, 121 (1978).
It is unclear whether the current Supreme Court would agree with an exception for minor or de minimus intrusions. Many scholars and judges believe that a president either has Article II authority to fire executive branch officials or he does not.
Notably, there are only four single agency heads who were given tenure protection by Congress: the directors of the Consumer Financial Protection Bureau (CFPB) and Federal Housing Finance Agency (FHFA), the commissioner of Social Security, and the Special Counsel. In 2020, the Court ruled in Seila Law LLC v. CFPB that Congress had violated Article II by granting tenure protection to that sole agency head, writing:
‘The CFPB’s single-Director structure contravene[d] [Article II’s] carefully calibrated system by vesting significant governmental power in the hands of a single individual accountable to no one.’ Id. at 224.
Then, in 2021, in Collins v. Yellen, the Court rejected the same claim as to the director of the FHFA. That opinion came with language that directly opposes Jackson’s rationale. The Court found Seila Law to be ‘all but dispositive’ on the question and expressly rejected the argument that this would change depending upon ‘the nature and breadth of an agency’s authority.’ The Court held that the ‘[c]ourts are not well-suited to weigh the relative importance of the regulatory and enforcement authorities of disparate agencies.’
Given these cases, lower courts clearly got the message – a message amplified by President Joe Biden, who appointed Dellinger. On the third ‘independent’ position, the commissioner of Social Security, Biden’s Office of Legal Counsel declared that ‘the best reading of Collins and Seila Law‘ is that ‘the President need not heed the Commissioner’s statutory tenure protection.’ Two circuits (the Ninth and Eleventh) have ruled consistently with that interpretation in favor of executive authority to remove such officers.
Ultimately, Dellinger can be removed even if this decision stands. The Trump Administration could have easily cited a basis like inefficiency or neglect. The question is why it decided not to do so. Clearly, it could just be a chainsaw approach to cutting positions. However, it may also reflect a desire for some in the administration to challenge lingering case law limiting executive powers. In other words, they seem to be spoiling for a fight.
The reason may be Humphrey’s Executor v. United States (1935), which established the right of Congress to create independent agencies. It found that Congress could, without violating Article II powers, provide tenure protection to ‘a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power.’ The Court in cases like Seila Law cited that precedent for one of the exceptions to executive power. It also cited an exception for giving tenure protection to ‘certain inferior officers with narrowly defined duties,’ under Morrison v. Olson (1988). Jackson cited both cases and those exceptions in shoehorning the Special Counsel into a narrow band of quasi-executive positions.
What may be overlooked in the filings of the administration before the Supreme Court in the Dellinger case was this line in a footnote: ‘Humphrey’s Executor appears to have misapprehended the powers of ‘the New Deal-era [Federal Trade Commission]’ and misclassified those powers as primarily legislative and judicial.’ It went on to suggest that the case is not only wrongly decided but that the Justice Department ‘intends to urge this Court to overrule that decision.’
Described by the Court as ‘the outer-most constitutional limits of permissible congressional restrictions on the President’s removal power,’ the Trump Administration appears set to try to redraw that constitutional map.
That is why Jackson’s opinion may not only be expected but welcomed by the Trump administration. It is hunting for bigger game than Dellinger and Judge Jackson just gave it a clear shot for the Supreme Court.
