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.
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.1The 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.
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.
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