Trump Seeks Emergency SCOTUS Stay Of District Court TRO Preventing Termination of Senior Employee (Update)
District Court prevented termination of Hampton Dellinger as head of the Office of Special Counsel. Emergency Application: “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….”
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.
You can read the DC Circuit 2-1 Opinion, which provided this background:
On October 3, 2023, then-President Biden nominated Hampton Dellinger to be Special Counsel of OSC. The Senate confirmed Dellinger, and he took office on March 6, 2024. His five-year term expires in 2029. But at 7:22 p.m. on February 7, 2025, Dellinger received an email from the Director of the Presidential Personnel Office, Sergio Gor. The email stated: “On behalf of President Donald J. Trump, I am writing to inform you that your position as Special Counsel of the US Office of Special Counsel is terminated, effective immediately. Thank you for your service[.]”
On February 10, 2025, Dellinger filed a civil action in the district court against President Trump, Gor, the Director of the Office of Management and Budget, the Secretary of the Treasury, the Acting Special Counsel of OSC, and the Chief Operating Officer of OSC. In relevant part, the complaint asserted that Dellinger’s removal violated 5 U.S.C. § 1211(b) because his removal was not “for inefficiency, neglect of duty, or malfeasance in office.” He sought an order declaring that his removal was unlawful and that he remains Special Counsel and must be fully treated as such. Dellinger also sought a TRO enjoining the defendants from removing him from his post pending further consideration of the merits….
On February 12, 2025, the district court vacated the administrative stay and granted Dellinger’s motion for a TRO. The TRO mandates that, until the district court rules on Dellinger’s request for a preliminary injunction, “Dellinger shall continue to serve as Special Counsel” and “[d]efendants may not deny him access to the resources or materials of that office or recognize the authority of any other person as Special Counsel.” Order Granting TRO 26. The district court scheduled a preliminary-injunction hearing for February 26, 2025, fourteen days later. Moreover, the district court directed the parties to inform the court whether it should “consolidate consideration of the request for a preliminary injunction with consideration of the merits” and whether further briefing was warranted. Id. at 27.
The district court thus forced the Trump administration to keep on staff and in that position someone it didn’t want. This was important because if the termination was unlawful, the normal remedy would be monetary (e.g. back pay), not that you have a right to stay in the position.
The DC Circuit refused to consider the case because TROs are generally not appealable, and the government had not shown that any of the exceptions to that rule applied. Judge Gegory Katsas dissented:
The President removed Hampton Dellinger from his position as Special Counsel, the sole head of a federal agency that wields executive power in prosecuting enforcement actions before the Merit Systems Protection Board. The district court then ordered the President to recognize Dellinger as the agency head for two weeks. Despite the limited duration of that order, I would stay it immediately. As explained below, the President is immune from injunctions directing the performance of his official duties, and Article II of the Constitution grants him the power to remove agency heads.
***
Before addressing the government’s request for a stay, I must consider this Court’s jurisdiction over the underlying appeal. That question arises because the February 12 order is styled as a TRO and remains effective for only two weeks. As a general matter, TROs are not appealable. But in my view, this TRO—which orders the President to recognize the authority of an agency head whom he has formally removed—qualifies for immediate review….
The extraordinary character of the order at issue here—which directs the President to recognize and work with an agency head whom he has already removed—warrants immediate appellate review….
The government has shown a strong likelihood of success on the merits. An injunction preventing the President from firing an agency head—and thus controlling how he performs his official duties—is virtually unheard of. See Franklin, 505 U.S. at 827 (Scalia, J., concurring in part and concurring in the judgment) (“I am aware of only one instance in which we were specifically asked to issue an injunction requiring the President to take specified executive acts [and] we emphatically disclaimed the authority to do so”). And in any event, Article II of the Constitution empowers the President “to remove the head of an agency with a single top officer.” Collins, 594 U.S. at 256.
The Trump administration has just filed an emergency request with the Supreme Court.
Sure enough, acting SG Sarah Harris just asked SCOTUS to vacate the D.C. Circuit's order, quoting Judge Katsas's dissent more than a dozen times. https://t.co/VlMW0SKV3d https://t.co/y4tIOj3ndx
— Mollie (@MZHemingway) February 16, 2025
From the Emergency Application:
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 district court’s order exemplifies a broader, weeks-long trend in which plaintiffs challenging President Trump’s initiatives have persuaded district courts to issue TROs that intrude upon a host of the President’s Article II powers. A district court in New York issued an ex parte TRO requiring that access to certain Treasury Department data be limited to “civil servants” and be denied to “political appointees.” New York v. Trump, No. 25-cv-1144, 2025 WL 435411, at *1 (S.D.N.Y. Feb. 8, 2025). A district court in the District of Columbia issued a worldwide TRO that prohibited the government from “suspending, pausing, or otherwise preventing the obligation or disbursement” of any “federal foreign assistance award that was in existence as of January 19, 2025.” AIDS Vaccine Advocacy Coalition v. United States Department of State, No. 25-cv-402, 2025 WL 485324, at *7 (D.D.C. 2025). Many other district courts have issued universal TROs that sweep far beyond the parties to those cases and effectively enjoin the President’s Executive Orders even before agencies have decided how to implement them.1
The United States thus respectfully requests that this Court vacate the district court’s order and end the practice whereby courts seize Article II powers for two weeks, yet disclaim the availability of any appellate review in the meantime. This Court should not allow the judiciary to govern by temporary restraining order and supplant the political accountability the Constitution ordains….
This Court should vacate the district court’s February 12, 2025 order granting respondent’s motion for a temporary restraining order. In addition, the Acting Solic-itor General respectfully requests an immediate administrative stay of the district court’s order pending the Court’s consideration of this application.
Pretty much everything I’ve been saying.
“There is no constitutional crisis other than the Democrats lost. They are trying to create a constitutional crisis by having the judiciary and the federal district courts assume control of the executive branch.” pic.twitter.com/GLcPV0ORqc
— William A. Jacobson (@wajacobson) February 16, 2025
Chief Justice John Roberts oversees the DC Circuit, so the application will go to him in the first instance. He could rule preliminarily on whether to grant a temporary administrative stay, or refer the stay application to the full court. I normally wouldn’t go out on a limb like this, but I think Roberts will issue an administrative stay, particlarly since it’s a holiday weekend.
This is a good case to go to SCOTUS first, as it’s completely outrageous.
UPDATE 2-18-2025
BREAKING: Chief Justice Roberts orders fired Special Counsel to respond by tomorrow on Trump Administration's application for stay and vacatur of reinstatement order. 1/
— Margot Cleveland (@ProfMJCleveland) February 18, 2025
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Comments
If Justice Rehnquist was still Chief this case would be a non-brainer. Chief Justice Roberts is more of a politician than a jurist.
Do you mean that under Rehnquist the court would have easily found for Dellinger? If you mean the opposite, what is the basis for that opinion?
As far as I know Rehnquist never questioned or sought to overturn Humphrey’s Executor. On the contrary, he wrote the 7-1 majority decision in Morrison v Olson, on which Dellinger will undoubtedly rely.
You guys are arguing about whether Babe Ruth could hit today’s fastballs. Have fun but it’s irrelevant.
https://x.com/i/broadcasts/1BdGYqaXmzNGX
This is crazy…the kind of crazy that ultimately is the result of the Court simply making up law themselves. Thomas and Gorsuch were both correct the undoing of Humphries was incomplete. Seila Law LLC v. Consumer Financial Protection Bureau was wrongly decided insomuch that the majority didn’t go far enough in their opinion. All ‘for cause’ terminations should be viewed as wholly unconstitutional. The US Constitution allows for ZERO exceptions to the supremacy of the Executive’s authority over the appointment of officers; he appoints them, he may remove them. They all serve at his pleasure.
If not granted, cut off the electricity, janitorial services and computer access. Of course his security clearance and parking place need to be revoked.
Withdraw his delegation of authority. I’d like to see a lower court order a sitting president to extend his Article II authority to someone, or to entertain a claim that issuing and withdrawing delegation of the executive authority is not an executive function under Art. II.
I haven’t researched the matter, but it seems to me that these obvious infringements on the President’s Article II powers and these baseless nation- and world-wide injunctions violate the tenet that judges “shall hold their offices during good behaviour.”
Enough is enough. Is this stuff “bad behaviour,” and a misdemeanor within the meaning of the impeachment clause of Article II, Section 4?
If Congress ever tried to impeach a judge for a decision he made on the bench, the Supreme Court would almost certainly strike it down as a violation of judicial independence.
Ever since the senate acquitted Samuel Chase it has been accepted that judges can only be impeached for private misbehavior, and not simply because Congress disagrees with their decisions. Otherwise how do you have an independent judiciary?
So why isn’t the Executive Branch independent? Aren’t we seeing an attempt at judicial supremacy in ALL matters of the Executive? This appears to further empower lawyers also as a $ide benefit?
Because the executive is required to obey valid court orders. That is the entire point of writs like habeas corpus and mandamus. The constitution specifically protects habeas, which necessarily means the executive has to obey it! If the executive could treat a writ of habeas as merely advisory then the writ would not exist. Therefore it is impossible to argue that the executive is exempt from obeying the courts.
The SCOTUS is only the final word on Constitutional matters because it says it is. And compliance with them depends on what judical activist hackery constitutes a “valid court order” in their cataract-incrusted eyes.
Wrong. It is the final word because the constitution entrusts the judicial power to the courts, and the judicial function is “to say what the law is”.
No, it’s not. A soldier, sworn to support and defend the Constitution, has the authority, nay, the obligation, to refuse to execute unlawful orders. A POTUS takes a similar oath, and is similarly obligated to refuse to obey unlawful orders. What orders are unlawful is an unreviewable authority of every private soldier, it being a matter of conscience.
A court order that infringes upon the authority granted the POTUS by the Constitution is arguably unlawful, and the POTUS does not require any other court’s agreement, just as the private soldier’s determination is unreviewable.
Ultimately, the question is political, and SCOTUS may rule in this way, punting the ball to the only players who matter, the electorate.
Maness v Meyers:
We begin with the basic proposition that all orders and judgments of courts must be complied with promptly. If a person to whom a court directs an order believes that order is incorrect, the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending appeal. Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect. Howat v. Kansas, 258 U. S. 181, 258 U. S. 189-190 (1922); Worden v. Searls, 121 U. S. 14 (1887).
The orderly and expeditious administration of justice by the courts requires that “an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings.” United States v. Mine Workers, 330 U. S. 258, 330 U. S. 293 (1947).
On what grounds would the courts get involved? Impeachment is purely an Article I function. The Chief Justice only gets involved when the impeachee is the President, as per Art I, section 3.
It won’t happen for disagreement on a court decision because you need 2/3 of the Senate.
Impeachment is a political act.
The courts would get involved because the judge who had purportedly been removed would continue to show up for work, be blocked, and sue. Or he would sue when his pay was cut off. Or someone would disobey his subpoenas and he would hold them in contempt, and they would sue.
Even at the impeachment stage itself, he might appeal to SCOTUS to enjoin the proceedings because of the impact on his authority.
Millhouse – I’m sure you’re familiar with the term “non-justiciable”. Properly, the courts would refuse to countermand an impeachment.
I am certainly familiar with it. But anything that affects judicial independence is by definition justiciable. The constitution says judges can only be removed for bad behavior. If the judiciary’s view is that this does not include the decisions a judge makes, then it must strike down any attempt by Congress to remove a judge for his decisions. It’s SCOTUS’s job to supervise the entire federal judiciary, so it will intervene when one of the judges under its supervision is purportedly removed, illegally in its opinion.
https://x.com/i/broadcasts/1BdGYqaXmzNGX
The only role the Court has in any Impeachment is the Impeachment of POTUS. During that specific trial, the CJ presides over the trial in the Senate. A conviction in the Senate, like the entire Impeachment process, is not subject to judicial review.
If Congress tried to remove a judge on grounds that (in the judicial branch’s view) are not constitutionally valid, SCOTUS would make it its business. It would hold that the judge is still in office and must continue to be paid, his orders and subpoenas must continue to be obeyed, and anyone disobeying this would be in contempt.
The Judicial Branch could certainly try to do that, though the source of this alleged power and successful use seem very shaky. If we got to point of Congress uniting to both impeach and remove a District CT Judge then it becomes a war of raw power between the Judiciary and Congress.
The Judiciary will lose that war every flipping time b/c a united Congress asserting its own power can simply dissolve the inferior Courts. Congress wins game, set and match every time in an institutional war.
Milhouse,
Usually your analyses are spot on. Here I think it falls short. Impeachment itself is a purely political process. There really are no “statutes” or precedents that govern it. “High crimes and misdemeanors” is about as indefinite as can be as recent “impeachments” have shown; the clause means whatever an impeaching and removing Congress says it means. Impeachment and removal is about as political a process as can be and I can readily see a situation where a Congress decides a judge has gone rogue without actually committing a statutory or common law crime. No way the Set is going to step into that morass and create a true constitutional crisis.
Suddenly, if judicial independence is threatened SCOTUS would have no choice but to get involved. It can’t accept a situation where judges have to look over their shoulders while making their decisions.
While precedent has been to not impeach judges based on their decisions. Impeachment is still a purely political event. Other than the statement in the constitution that “for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”, there is no other real guidance as we saw in the two Trump impeachments. And just like things were twisted in the Trump impeachments an unscrupulous congress an pretty much do what ever they want.
And high crimes and misdemeanors clearly include making unconstitutional rulings.
When made in ‘bad faith’ sure. IMO one metric for whether a District Judge is competent is reversal rate. Congress could set a streamlined impeachment/removal process for the worst offenders in each Circuit. Basically an automatic referral for the 3 Judges in each Circuit with highest reversal rate each term. Even if not impeached it would be enough of a ‘ding’ on them to give grounds not to confirm them to Circuit CT or to Execute Branch positions in DoJ.
Judges are not removed for “high crimes and misdemeanors” but for bad behavior. But judicial independence means that that cannot refer to rulings on the bench. It is not up to Congress to decide whether a judge’s rulings are unconstitutional. It is the judicial branch’s role to say what the law is. Congress doesn’t get to interpret the constitution or any other law.
This was the consensus that produced Chase’s acquittal. The senate acquitted Chase because enough senators argued that they did not have the power to convict him for his rulings, and the House had been wrong to impeach him in the first place. And since then that has been the accepted view.
Once again, Mihouse, you simply miss the point of relevance. It is even right in front of you. You wrote: “This was the consensus that produced Chase’s acquittal.” But that was the Senate, that is Congress that made this decision. Do you really think the SCt is going to attempt to overrule a guilty verdict on impeachment? That is where the actual constitutional crisis lies. As Alex. Hamilton wrote the Judicial Branch was the weakest of the three as it had no means of enforcing its decisions – other than the respect accorded its rulings by the other branches. You and I both know that the SCt. would not step into such a no-win situation. It might find other ways to constrain the political branches, but not by “declaring and impeachment” unconstitutional.
https://x.com/i/broadcasts/1BdGYqaXmzNGX
Rduke, no matter how many times you post it I am not going to listen to a nearly-two-hours podcast, especially not just on your suggestion that it might somehow be relevant. If you have a point to make, make it, and link to written sources that can be consulted easily without wasting two hours.
It is if congress says it is. But I doubt they will. The Republicans lack the nerve and the Democrats lack the foresight.
There’s no question that Dellinger’s firing violates 5 USC 1211 (b).
The question is whether that clause is valid law. The two relevant cases are Seila Law and Morrison v Olson.
So, what you are saying is that Trump can place whatever agency head in place before the next Democrat president takes office, and that president has to let that agency head remain?
What kind of fûcked up world we live in.
Dellinger’s term doesn’t expire until March 6, 2029, which is after Trump’s term. So the law establishing the Office of Special Counsel explicitly says Trump can’t ever touch him. He must let him remain, and give him full access to the resources he needs to do his job. That is what Congress explicitly enacted.
The question is whether Congress can do that. Humphrey’s Executor says that it can. Morrison v Olson says it can, for some offices. Seila Law says it can’t for some offices, but it’s not clear where this office falls. When the injunction practice is over and the case goes to court, those will be the parameters of the argument. Dellinger will argue his office is like those protected in Morrison, while Trump argues that it’s more like those that were unprotected by Seila. Trump will also argue that both Morrison and Humphrey’s Executor should be overturned.
I’m pretty sure the statute creating the OSC allows the President to remove him for ‘malfeasance’ in office. Though you are correct that the statute doesn’t grant authority to fire at will to the President, which is a problem in itself considering the plain language of ART 2, notwithstanding some bad precedents.
IMO the first question is whether this body, the OSC, falls under the same category as the Federal Trade Commission; ‘a quasi judicial or quasi legislative body’. If not then Humphrey’s Executor wouldn’t apply. The second question is whether SCOTUS would overturn Humphrey’s Executor if they thought it did apply. The third is whether they would use it to simply require payment of salary and benefits through the remaining term or would SCOTUS order the Executive Branch to not just pay him but give this guy the full authority of the position. That last seems unlikely to me.
IMO Humphrey’s Executor is a horrible precedent. It spawned a good deal of the administrative State nonsense that empowered almost totally unaccountable bureaucracy and is directly at odds with Art 2. I suspect SCOTUS may take an opportunity to pull the teeth of Humphrey’s Executor and perhaps gut it entirely.
Did you read my comment before replying? I linked to and cited the relevant part of the statute. And I linked to and discussed the two cases that control this question.
The relevant cases are Selia Law and Morrison.
Milhouse,
I did. Both the cases you cite reinforce my point; does the OSC fall under Humphrey’s Executor or is it not analogous to FTC.
You make the point about removal for cause in your original post but then discarded that in your reply to invoke a far more broad reaching claim that ‘Trump can’t ever touch him (during his term)’ and then claim he MUST be allowed to work within the Executive Branch and perform the job invoking Humphrey’s Executor.
The other unstated question is how much this particular iteration of SCOTUS will accept the breadth of these series of precedents that seek to limit Presidential power. ART 2 is quite clear. Given the pushback this iteration of SCOTUS has shown re the Administrative State I think it is reasonable to say that the prior precedent may be in jeopardy and that the view of the President as unitary Executive may very well prevail.
Chief, if you read my comment before replying then I’m very puzzled.
I explicitly cited the statute. So you didn’t have to guess what it says.
And you clearly didn’t read carefully, because you claim that I claimed that ‘Trump can’t ever touch him”. No, I did not. If you’d read it carefully you’d have seen that I said that is what the law says. You can’t dispute that. The law is very clear, and specifically says what I said it says. The only question remaining is whether that law is valid.
And that depends on the space between Selia Law and Morrison. In Morrison a 7-1 court, in an opinion written by Rehnquist, said there are officials whom Congress can forbid the president to fire. Selia Law said there are officials whom it can’t. The question is where does Dellinger fall between those two cases. Is he like Morrison and protected, or is he like the CFPB director and unprotected? That is the space in which all litigation will take place.
Milhouse,
Ok. I would point out that the SCOTUS of 1988 that decided Morrison v Olson (wrongly IMO) is entirely different than the current composition. That the entire climate for acceptance of the status quo in both administrative law and the degree of ‘independence’ afforded to these odd duck creations of quasi this/that boards and commissions has flipped on its head. Especially in the decisions of the last two terms.
Not one member of SCOTUS that decided Morrison 37 years ago is on the CT, heck most of them are deceased. The current composition of the CT is far closer to the dissent offered by Scalia in which he makes plain that these sorts of intrusions by Congress are impermissible under ART 2.
I find it highly unlikely that the SCOTUS will ultimately rule that the President is not the unitary Executive. This is nearly the perfect test case to use as the vehicle to restore the fundamental primacy of ART 2 and toss these (unconstitutional IMO) attempts to constrain the President and by implication the People which elected him to office.
Yes, it’s certainly possible that the current court would overturn both Morrison and Humphrey’s Executor. Perhaps it should.
I’m just saying that under current law, which is what binds the lower courts, including the court that issued this injunction, Dellinger has a plausible but not airtight case. And that should be enough to justify a temporary injunction.
“Not airtight”, because even without overturning Morrison, the court could decide Dellinger’s office is more like those unprotected by Selia Law than like those protected by Morrison. Any time you have decisions saying “some X are protected and some are not”, you’re inviting litigation exploring where the line lies.
Milhouse,
Agreed on current precedent though I am glad to see you agree that this instance doesn’t automatically fit under Humphrey’s Executor and it is yet to be determined how th OSC should be fitted into that precedent, assuming the CT doesn’t heave the precedent.
IMO the creation of ‘independent’ boards/commissions are intrinsically flawed when placed under the Executive Branch by Congress. If they want independent, standing committees then create them under Congress; but that doesn’t seem aye all proper So where do we.put them if not the Executive? Nowhere, don’t try and shoehorn these oddities into a separate branch and then declare that the head of that branch can’t run it. Imagine the Executive creating ‘independent’ Congressional offices or telling us that all the magistrates will be determined by the President’s Chief of Staff not the Judiciary and that their term, their authority is what the Executive Branch says it is. It’s absurd.
OK, you are redeeming yourself. A very good analysis.
This case is bigger than this as it appears to be addressing ALL TRO’s targeting Trumps Presidency.
No, it mentions them but the relief it seeks is restricted to the power to fire agency heads.
So fine…give him the job of reorganizing the bookshelves in the library.
The question is to what extent Federal Agencies such as the EPA and FTC for example have morphed into agencies covered by the Executive Branch due to their taking upon themselves of issuing rules with the force of law and assigning penalties for violating them turning themselves into Executive Branch Agencies under the purview of the President. They clearly have, in my view. Congress can not bind the Chief Executive from performing oversight of his/her branch no matter what law they pass. It would have to be a Constitutional Amendment seizing that power from him.
The man in question is under the DOJ which is under The Executive Branch. Trump clearly has the authority under the Constitution to terminate it’s employees. Article 2, Section 1 could not be more clear “SECTION. 1. The executive Power shall be vested in a President of the United States of America.” It is Congress that is attempting to seize power from the Executive Branch and the Judicial Branch is claiming more and more power that it also does not have. It is about time that a President put a stop to these Un Constitutional Nationwide Restraining Orders that the District Judges are issuing which far exceeds their authority.
The EPA and FTC are clearly and obviously in the executive branch, and always have been. There is no other branch they could possibly be in. Humphrey’s Executor says that there are executive branch employees whom Congress can put beyond the president’s power to fire. Morrison v Olsen says the same thing about a different class of employees. Selia Law doesn’t overturn those two decisions, but says there are also employees whom Congress can’t protect from the president.
In this case the law Congress passed clearly does protect Dellinger. The question is whether his position is more like those in Humphrey’s Executor or in Morrison, and thus Congress can and has protected him, and Trump has no authority to fire him; or is his position more like those in Selia Law, which Congress tried to protect but the Supreme Court said Congress can’t do that.
So it would seem to me this could be solved easily by ordering him to do some things that are completely legal, in Trumps interest, and go against everything this guy believes. When he refuses that is neglect of duty and you walk him out. Problem solved.
Who runs the Executive Branch? The President, or some half wit graduate of a mediocre law school in some meaningless district court?
Please. Someone explain to me how a Circuit Court decision can only apply to the jurisdiction of that court, but a district court can make its ruling apply nationally?
Please someone explain to you the difference between a decision and an order.
As for who runs the executive branch, of course the president does, but he is bound by the law. He can’t just do whatever he likes. And there is a law on the books that says explicitly that he can’t fire this guy. The question is only whether that law is valid. If Trump wants to be free of its restrictions he’s going to have to get the courts to strike it down. And it’s not clear whether they will do so.
Article II powers in the Constitution says he is the chief executive of the government. A law was put forth, Humphrey’s Executor, that says he must do x because of y.
My untrained mind says that is opposite what the Constitution says, how can that law stand?
Humphrey’s Executor is not a law, it is a Supreme Court case. And it says that there are certain executive branch positions that Congress can shield from the president’s power to fire.
More relevant here is Morrison v Olson which also says there are certain positions that Congress can shield from the president. That is the case Dellinger will surely rely on in his challenge to his firing. That was a 7-1 SCOTUS decision that was authored by Rehnquist.
The government will argue that Dellinger’s position is more like those at issue in Selia Law, in which the court struck down a clause in a statute restricting the president’s power to fire an official.
The court might agree that his position is either like that in Selia and the president can fire him, or that it’s like that in Morrison and he can’t fire him, or it may overturn or modify one or both of those decisions, as well as Humphrey’s Executor.
Always the condescending dickhead. Right or wrong, you are still a condescending dickhead.
How many time did you get your ass kicked in school?
You can probably clear a room faster than an ICE agent in a Florida WalMart just by your presence.
I try to educate you a little, make you a little bit less ignorant than you are, and when you react like this it just shows you have no answer and know I’m right.
Would love to hear you and Robert Barnes discuss this and other issues.
Dellinger needs to be fired. How can he carry out his duties when he was killed outside the Biograph Theater?
You are, without a doubt, a genuine glans penis. You are a small brained creature with no respect for folks whose opinions – even though supported with reason and argument – differ from your kindergarten reactionary emesis. If you actually were once in the Air Force, thank god you are now out. You remind us all of Brig General Jack D. Ripper in Dr. Strangelove. You are a danger to intelligent thought. Go away little boy.
He is not bound by Judges taking power they do not have. The Nationwide Orders these Judges are issuing far exceeds their authority. The law binding Trumps hands in how he runs the Executive Branch and it’s employees is as un Constitutional as the judges orders. Time to settle this nonsense or we will have an Executive Branch run by Judges in every corner of the country and a Legislative Branch making laws binding the President into nothing more than a figurehead.
You didn’t complain when a Texas judge enjoined Son-of-DACA. Therefore you have no right to complain about nationwide injunctions now.
That’s a pretty stupid comment but par for the course from Justice Milhouse
but he is bound by the law
He’s bound by the Constitution.
There’s a good question how much the law binds him if it removes or restricts his executive powers.
The constitution is part of the law. The president is bound by all the law. Including statutes and court orders. If he believes a statute is invalid he can say so and try violating it, and someone with standing will sue him, and then a court will decide whether to issue a temporary order. That’s how it works. And that’s what’s happening here.
There is a statute saying Trump can’t fire Dellinger. Trump fired him anyway, so he sued. When it comes to trial, presumably Trump will argue that the statute is invalid, and Dellinger will argue that it’s valid. Trump will cite Selia Law and Dellinger will cite Morrison. The court will decide, and if one party or the other doesn’t like it they may ask the Supreme Court to take it up.
In the meantime there is a temporary order which Trump is bound to obey even if it’s invalid, but he is entitled to ask a higher court to overturn it, and that is what he has done.
Who runs the Executive Branch?
Given how they have run roughshod over the Constitution for at least 100 years, the better worded question is:
Who run Bartertown?!
There’s been so much awesomeness by the Trump admin the following hasn’t been getting coverage.
Go see Andy Ngo’s youtube channel on the trans terrorist cult- they’ve got over a half a dozen murders and more violence in their trail of terror. They are the ones who shot that border patrol agent. Now that the FBI is unburdened by J6 they finally had time to raid the terrorist cell’s compound.
Not an ounce of this is making headlines anywhere… even conservative outlets.
Well well well you don’t say
This crooked judge took in 100 million in
NGO $$$$
https://www.thegatewaypundit.com/2025/02/racist-judge-jack-mcconnell-who-halted-president-trumps/
The three ugly broads in robes ruin the photo and the court.
How dare you assign gender like that. At least 2 have no idea what you are talking about because they are not biologists.
It seems to me that there’s 3 questions that need resolving:
-If the president, who is Trump, terminates someone, are they sacked or does the judicial branch need to confirm presidential orders?
-If President Trump’s orders can be delayed 2 weeks because of TRO’s, can they be delayed further, or even indefinitely?
-If the president, who happens to be Trump, cannot in fact sack anyone, can he order them to go physically count polar bears in Antarctica in July?
And if the courts’ answer to all of these is no, then who is in charge of America because apparently the courts have concluded it isn’t President Trump.
No, those are not the questions that need to be answered.
The question that needs to be answered is that when the law says explicitly that the President cannot fire someone except for inefficiency, neglect of duty, or malfeasance in office, is that a valid law? We already know that the answer is yes for some offices and no for others, so the real question is where this particular plaintiff’s office lies on the spectrum between Selia Law and Morrison.
The Constitution is pretty clear on who the head of the executive branch is. Pretty sure that isn’t some Democrat Judge
And yet two Supreme Court decisions, which are currently the law of the land, say that Congress can forbid the president from firing certain executive branch employees.
Another decision says there are some employees whom he must be allowed to fire, whether Congress likes it or not.
So the question is merely where in that spectrum this particular office falls.
So was Roe
two Supreme Court decisions, which are currently the law of the land
And there’s where your error pops up, Milhouse. They are NOT “the law of the land.” They are accepted as the law of the land, but in fact do not bear that weight under the Constitution. They are decisions about the validity of the law, but are not in fact laws.
And this is the weakness of the judicial branch. It has no way to really enforce its proper decisions, and there is no easy way for the people to hold them accountable for their horrible decisions (like Roe). They were intended to be independent (for good reason) of the other 2 branches, but they then didn’t really apply the same laws of human nature they did for the other two branches. (Yes, there’s impeachment, but that only works if the legislative and judicial branches are at odds. The judicial branch is too easily pulled into the administrative state because of their lifetime appointments, IMO.)
GWB, court decisions are statements about what the current state of the law is. That is the judicial power, and the constitution explicitly grants it to the Supreme Court and to the inferior courts. They say what the law is, and the law is whatever they say it is.
They are of course required to be honest, but there isn’t really a recourse if they’re not. The higher courts are supposed to correct the lower courts’ errors, but unfortunately there is no one who can correct the Supreme Court’s errors. You just have to somehow convince them that they got it wrong.
The major constraint on the judiciary is that it can’t act sua sponte. It can’t just take up cases where it thinks something wrong has been done. It has to sit and wait for someone with standing to bring a case to it. That’s why standing is so important; note well all the people here who constantly complain about it.
If you want to see what happens when a judiciary throws off these constraints, and arrogates to itself the power to interfere in anything it likes, without a plaintiff with standing bringing a case to it, look at Israel. Democracy there is a sham, elections are a sham, because no matter how the people vote the judges and the DOJ civil servants remain the true government and keep implementing the same policies, and they dictate to the elected “government” what it must do.
https://x.com/i/broadcasts/1BdGYqaXmzNGX
Given he is the Chief Executive, the actual question is “How can the legislature bind him with a law that restricts his Article II powers?” THAT is the real question. (Which George_Kaplan was asking in a roundabout way.)
The question is whether this does restrict his Article 2 powers. Nowhere in Article 2 does it say, or even hint, that he can fire officers or employees. Congress makes the laws, and if it says civil servants have tenure then he can’t fire them.
Deciding what exactly a president’s powers are, under Article 2, is a job for the courts, granted to them by Article 3.
So now Trump brings forward steamer trunks of evidence of Dellinger’s malfeasance, and says,, “You should have taken my first offer.”
I think the
Sorry. I don’t know how that got posted.
I think Roberts puts the legitimacy of the court over the actual; law. He sees what is goping on and what the public reaction is. Likely he will side with Trump and drag Barret or Kavanaugh with him.
As for impeachment, judges can be removed for bad behaviour. I would argue thjat rukings masde in bad faith are bad behaviour”. Probably for judges they are the baddests of behaviour. It’s enough to start qan impeachment inquiry. After that who knows what they find, A lot of judges retire before their bad bevaviour is revealed.
The saddest part is that EVERYONE knows how the three liberal stooges will rule. For good or bad, the Court is (and probably always has been) a political institution rather than a legal one. “Unexpected” votes by individual justices usually involve conservative justices who make an effort to rule on the law–they go where the law takes them. Liberal judges almost always vote the party line. It’s only good fortune that the timing of Supreme Court vacancies has gone the Republican way–but even then, Republican Presidents have managed to snatch defeat from the jaws of victory (Warren, Brennan, Stephens, Souter, Roberts, Kavanaugh, and Barrett). Once again, the Republicans are fighting by different rules than the Democrats.
IMO there was no excuse for Trump picking Barrett, aka RBG 2.0. He had already had 3.5 years of seeing where bad picks got him.
Have there been many instances when the liberal judges have broke ranks and not voted as a block?
And how is it Democrats can ALWAYS be counted on voting together through thick and thin yet so called f88king Republicans twist themselves like pretzels to vote against each other?
Yes, there have been many such instances.
If you look at SCOTUS decisions there are many that are unanimous or nearly so, and there are many with odd majorities.
Sorry. I don’t know how that got posted.
It looks like your keyboard is moving the keys under your fingers as you type. I blame AI and young hipsters who want to mess with the older folk.
Very good comments all around, but there are a few things missing.
First, the relationship to Spicer vs. Biden and Severino vs. Biden seems pretty clear to me. What am I missing? These cases were engineered to ask this sort of question, and it was answered. The administration in power has great latitude to dismiss from the Executive.
Second, there is a serious blindness to the reality that the court and executive both completely ignore the clear meaning of the Constitution. See, for example, the 10th and 2nd amendments. The meaning of each is quite clear and well documented, but completely ignored.
What is the congress or the average citizen to do when the executive and courts conspire to ignore the clear and obvious meaning of the law?
Similarly, the courts and the legislatures of several states have conspired to ignore the plain meaning of the 2nd. So please do not expound on the perfection of the system, and how the courts have to do something. Or how the executive has to do something. They all pledge an oath to the Constitution, then ignore the oath.
On whole, the courts, executive and congress are packed full of power hungry morons that ignore the oath to the Constitution and do whatever seems to further their power. Why is this particular case any different?
I have an actual question. Couldn’t Trump take one of the cases that this guy handled and say that the way he handled it was neglectful or wrong?
He could try. If he’d done that in the first place this case would probably not have been brought. The whole basis for the injunction is that the president didn’t even allege proper grounds for firing him.
That is kind of what I was thinking. Thank you for the answer.
Special Counsel to the DOJ Office of Special Counsel
Special Counsel to the Special Counsel? I think y’all are missing the buried lede here. Oy vey.
It’s an office explicitly created by statute. And that statute says the president can’t fire the person who is filling it, except on specified grounds. The question is whether that clause of the statute is valid.
And if it’s not, whether that invalidates the whole law and thus the office itself, but Selia Law already answered that question in the negative. The clause in the law establishing the CFPB that forbade the president from firing the director was struck down, but the rest of it was upheld.
The more I think of it, SCOTUS must come down on the side of Trump. SCOTUS must reinforce its primacy. Having too many judges going off the reservation dilutes their power.