A federal district court judiciary out of control reacting to hair on fire Democrat hysteria and demands for emergency (and often ex parte) Temporary Restraining Orders has made its way to the Supreme Court in a case we covered a few days ago, Trump Seeks Emergency SCOTUS Stay Of District Court TRO Preventing Termination of Senior Employee:
I’ve been arguing since the Democrats’ pre-planned lawfare campaign started that the Trump administration needed to start getting cases to the Supreme Court because what was happening in the district courts were emergency Temporary Restraining Orders which impigned on executive branch authority.Looks like we have the first case where SCOTUS may weigh in.The case was brought by Hampton Dellinger, Special Counsel to the DOJ Office of Special Counsel, seeking to have him restored to the position after termination by the Trump administration. The district court in DC granted the TRO, and the DOJ took the case to the DC Circuit Court of Appeals, which refused to consider it on the ground that TROs generally are not appealable.
In the Emergency Application government argued:
This case involves an unprecedented assault on the separation of powers that warrants immediate relief. As this Court observed just last Term, “Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his ‘conclusive and preclusive’ constitutional authority”—including “the President’s ‘unrestricted power of removal’ with respect to ‘executive officers of the United States whom [the President] has appointed.’” Trump v. United States, 603 U.S. 593, 609 (2024) (citation omitted). As to such principal officers—“the most important of his subordinates”—“[t]he President’s ‘management of the Executive Branch’ requires him to have ‘unrestricted power to remove’ them ‘in their most important duties.’” Id. at 621 (citation omitted). Enjoining the President and preventing him from exercising these powers thus inflicts the gravest of injuries on the Executive Branch and the separation of powers….Until now, as far as we are aware, no court in American history has wielded an injunction to force the President to retain an agency head whom the President believes should not be entrusted with executive power and to prevent the President from relying on his preferred replacement. Yet the district court remarkably found no irreparable harm to the President if he is judicially barred from exercising exclusive and preclusive powers of the Presidency for at least 16 days, and perhaps for a month….The United States now seeks this Court’s intervention because these judicial rulings irreparably harm the Presidency by curtailing the President’s ability to manage the Executive Branch in the earliest days of his Administration…
The Supreme Court (Case Docket) has just ruled on the Emergency Application, and its ruling was to not rule on it. Instead, it will wait until February 26 to see if the injunction is extended. From the Order just issued (emphasis added):
This matter concerns the President’s action to remove Hampton Dellinger from his position as Special Counsel for the Office of Special Counsel. Dellinger challenged his without-cause removal in the District Court for the District of Columbia. See 5 U. S. C. §1211(b). On February 12, 2025, the District Court entered a temporary restraining order (TRO) providing that Dellinger should remain in office until the court ruled on his motion for a preliminary injunction. The District Court has scheduled a hearing on that motion for February 26, the day that the TRO expires. See Fed. Rule Civ. Proc. 65(b)(2). Pending before this Court is the Government’s application to vacate the TRO. Dellinger has filed a Response in Opposition. The Government then filed a reply. The question is thus fully briefed before this Court. Although it acknowledges that this Court typically does not have appellate jurisdiction over TROs, the Government urges us to construe the TRO as a preliminary injunction or to exercise jurisdiction under the All Writs Act in light of the core executive power assertedly restrained. Application 31–32; see 28 U. S. C. §1292(a)(1). In his opposition, Dellinger repeatedly notes that the TRO will “expire by its terms [in] eight [now five] days,” Response in Opposition 1, that it “lasts only for a very short duration,” id., at 15, and that it “is set to expire on February 26,” id., at 39. In light of the foregoing, the application to vacate the order of the United States District Court for the District of Columbia presented to THE CHIEF JUSTICE and by him referred to the Court is held in abeyance until February 26, when the TRO is set to expire.
MORE TO FOLLOW
Justices Sotomayor and Jackson would have denied the application completely. Gorsuch, joined by Alito, wrote a dissent, focused on whether a district court even has the power to order reinstatement of an executive branch officer:
… The Court instead holds the application in abeyance. Presumably, like the court of appeals, it harbors a concern that the TRO may not yet have ripened into an appealable order. Respectfully, I believe that it has and that each additional day where the order stands only serves to confirm the point. Respectfully, I believe that it has and that each additional day where the order stands only serves to confirm the point. Unlike preliminary injunctions, of course, TROs are generally not appealable. See id., at 1a (citing 28 U. S. C. §1292(a)(1)). But exceptions exist, preventing district courts from “shield[ing]” their “orders from appellate review.” Sampson v. Murray, 415 U. S. 61, 87 (1974). And as Judge Katsas recounted in detail below, here there are powerful reasons to look behind the label, acknowledge that this TRO presently acts as a preliminary injunction, and review its lawfulness….Under this Court’s precedents, however, a federal court may issue an equitable remedy only if, at the time of the Nation’s founding, it was a remedy “traditionally accorded by courts of equity.” Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 319 (1999). That limitation would seem to pose a problem here, for courts of equity at the time of the founding were apparently powerless to “restrain an executive officer from making a . . . removal of a subordinate appointee.” … Given that pattern of restraint, by the 1880s this Court considered it “well settled that a court of equity has no jurisdiction over the appointment and removal of public officers.” ….To be sure, throughout the Nation’s history, various presidentially appointed officials like Mr. Dellinger have contested their removal—and courts have heard and passed on their claims. But those officials have generally sought remedies like backpay, not injunctive relief like reinstatement….The district court grappled with none of these complications before ordering Mr. Dellinger’s reinstatement. And if there are answers to the questions its remedial order raises, they appear nowhere in that court’s decision. Accordingly, I would vacate the district court’s order and remand with instructions to consider the “boundaries of traditional equitable relief.” Grupo Mexicano, 527 U. S., at 322.*
This, of course, was a huge missed opportunity by SCOTUS. It was the safe play, given that the TRO expires in a few days, but it will have negative repercusions encouraging District Courts to overstep their boundaries so long as they do it under the guise of a relatively short term TRO.
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