The administration is seeking legal support from the conservative high court to back its efforts to expand the power of the presidency.
Sunset at the Supreme Court building (Allison Robbert/The Washington Post)
The administration asked the Supreme Court on Sunday to clear the way for the president to fire the leader of an independent agency that investigates whistleblower reports filed by government workers — the first time President Donald Trump has appealed to the justices for help in his efforts to remake and seize greater control of the federal bureaucracy.
Hampton Dellinger, the head of the Office of Special Counsel, sued the Trump administration after he was fired in a one-sentence email this month. Dellinger said his termination was illegal because it violated a law that shields leaders of independent agencies from removal by the president, “except in cases of neglect of duty, malfeasance or inefficiency.”
In addition to Dellinger, Trump has in his first weeks back in office ousted more than a dozen inspectors general, replaced top ethics officials, and removed the heads of other agencies that protect federal workers and investigate agency wrongdoing.
The question of whether Trump has the authority to push Dellinger out without good reason is an early test of how the conservative Supreme Court, with three Trump nominees, will respond to the president’s efforts to systematically reshape the bureaucracy.
Many of Trump’s initiatives on immigration, transgender rights and government spending have already faced pushback in the lower courts, and those cases are expected to eventually reach the high court.
The Constitution gives the president the power to remove top executive branch officials for no reason or any reason at all, but Congress has passed legislation that protects certain officials from being fired without cause in an attempt to ensure their independence.
In recent years, however, the conservative Supreme Court has taken steps to expand presidential power, most notably when it found last summer that Trump — and future presidents — are immune from criminal prosecution for their official actions. Trump’s early actions are also testing to what extent Congress and the courts can restrain executive authority and asking the justices to define those boundaries.
In Dellinger’s case, a federal judge in D.C. had issued a temporary order allowing him to keep his position in the interim as the case proceeds. Dellinger was nominated by President Joe Biden to a five-year term that expires in 2029.
Late Saturday, a divided panel of the U.S. Court of Appeals for the D.C. Circuit rejected Trump’s request to block the lower court order and remove Dellinger, and the administration quickly asked the Supreme Court to intervene.
“This Court should not allow lower courts to seize executive power by dictating to the President how long he must continue employing an agency head against his will,” Sarah M. Harris, acting solicitor general, wrote in the emergency filing provided by the Justice Department but not yet officially docketed and posted on the Supreme Court’s website.
The lower court rulings, she added, “irreparably harm the Presidency by curtailing the President’s ability to manage the Executive Branch in the earliest days of his Administration.”
The justices could respond as soon as Tuesday to the administration’s emergency request, which was earlier reported by the Associated Press.
To make its case, the Trump administration pointed to the court’s 2024 immunity ruling and a 2020 decision in which the justices said the structure of another independent watchdog agency was unconstitutional and that the president had the power to fire without cause the director of the Consumer Financial Protection Bureau.
In the lower courts, U.S. District Judge Amy Berman Jackson ruled last week that Dellinger was likely to succeed in his challenge to the president’s removal order. She has allowed Dellinger to continue in his role for at least two weeks, ahead of a hearing scheduled for Feb. 26.
A D.C. Circuit panel said in a 2-1 order that it would be premature for the appeals court to step in before the underlying legal issues are resolved in the district court.
“There is no dispute that the President violated the statute by not making any finding of ‘inefficiency, neglect of duty, or malfeasance in office’ before removing Dellinger,” according to the order from Judges J. Michelle Childs and Florence Y. Pan, both Biden nominees.
In dissent, Judge Gregory C. Katsas said Congress cannot constitutionally restrict the president’s power to remove the special counsel because of the office’s broad investigative and enforcement powers. He said the matter should be immediately reviewed by the appeals court.
A court order “preventing the President from firing an agency head — and thus controlling how he performs his official duties — is virtually unheard-of,” wrote Katsas, a Trump nominee who served as deputy legal counsel in the first Trump administration.