125. The Court's First Trump II Case Won't Be a Bellwether

The challenge to Trump's removal of the head of the Office of Special Counsel raises unique procedural and substantive issues likely to prevent it from serving as a referendum—in either direction.

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Yesterday afternoon, the first of the dozens of lawsuits challenging actions taken by President Trump and his administration over the past four weeks (yes, it’s only been four weeks) reached the Supreme Court. In Bessent v. Dellinger, the Acting Solicitor General, on behalf of the Department of Justice, is asking the Supreme Court to vacate a D.C. federal judge’s ruling that had temporarily reinstated Hampton Dellinger as the head of the Office of Special Counsel—an “independent” federal agency. The government is also asking the Court to issue an “immediate administrative stay” to pause that ruling and keep Dellinger out of office—a request that neither Chief Justice Roberts (who, as the “Circuit Justice” for the D.C. Circuit, received the request) nor the full Court has yet to act on.

It’s easy to understand why folks will see the Dellinger case as a litmus test for the justices—and will assume that, however the Court rules on the government’s emergency application here will necessarily signal how much (or how little) the justices are going to push back against the rest of the new administration’s actions. My own view, though, is that this is almost certainly a mistake—in both directions. The Dellinger case raises unique procedural obstacles that could foreclose emergency relief to the government without signaling any view of the merits. But it also raises a constitutional argument in support of Trump’s conduct that is stronger in this context than it will be in almost any of the other pending cases. The Dellinger case is important in its own right. But no matter how the Court rules, we shouldn’t view the result as foreshadowing everything (or, frankly, almost anything) else that’s coming.

But first, the (other) news.

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On the Docket

As expected, last week was a quiet one at the Court. Besides some routine housekeeping orders in pending cases that came out on Wednesday, the only real news was the Court’s (typically) unexplained refusal to block Florida’s execution of James D. Ford; and the release of the March oral argument calendar—which includes some of the term’s biggest cases (at least as of now).

The justices did not hold a Conference last week, so we won’t get an Order List tomorrow (the Court is officially closed today for Washington’s Birthday).¹ Indeed, nothing is expected from the justices until they take the bench Friday at 10:00 ET, when we expect one or more opinions in argued cases. Anything before then, including any movement in the Dellinger case, would come as “miscellaneous” (and, thus, unpredictably timed) orders. (If you could use a refresher on when and how the Court hands things down, see this earlier post.) Beyond Friday’s opinions, we next expect a regular Order List next Monday (February 24) at 9:30 ET.

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The One First “Long Read”:
The Uniqueness of the Dellinger Case

To understand why the Dellinger case is unique, it’s necessary to provide some background—on the agency at issue; the constitutional defense of Trump’s conduct; and the procedural posture of the litigation to date.

I. OSC and the Unitary Executive

The Office of Special Counsel (OSC) has nothing to do with more famous “special counsels” within the Department of Justice, like Jack Smith. Rather, OSC is an autonomous, “independent” agency within the executive branch—initially created by Congress in the Civil Service Reform Act 1978 as part of the Merit Systems Protection Board, and then given its own legal footing as a standalone agency in the Whistleblower Protection Act of 1989. OSC’s charge is to protect federal employees from unlawful employment-related conduct by the federal government (“prohibited personnel practices”), including but not limited to retaliation against whistleblowers. To that end, OSC is the central office within the executive branch tasked with investigating and pursuing federal employees’ claims of wrongful employment practices. Indeed, Congress created OSC at least largely as an alternative to authorizing employment-related litigation by government employees against the government; the idea was that, instead of opening the litigation floodgates, OSC would clean up the government’s employment-related dirty laundry.²

The head of OSC is “The” Special Counsel of the United States, who, by statute, is appointed by the President (with the Senate’s advice and consent) to a five-year term, and can be removed by the President “only for inefficiency, neglect of duty, or malfeasance in office.” In March 2024, with the Senate’s consent, President Biden appointed Hampton Dellinger as the Special Counsel.

Ten days ago, on February 7, President Trump purported to dismiss Dellinger, although he did not identify any “inefficiency, neglect of duty, or malfeasance in office” that would justify Dellinger’s removal. Instead, Dellinger’s removal was apparently predicated on the view that the for-cause removal restrictions in the Civil Service Reform Act are unconstitutional—after and in light of the Supreme Court’s decisions in Seila Law v. CFPB in 2020 and Collins v. Yellen in 2021.

To make a (very long) story a bit shorter, Congress’s long-asserted power to protect certain Executive Branch officers from at-will removal has long been a bête noire for conservatives—especially those who subscribe to the “unitary executive” theory of Article II. The Supreme Court has upheld “for-cause” removal restrictions for multi-member heads of independent agencies like the FTC; and for “inferior” officers like the independent counsel created by the Ethics in Government Act of 1978. But both of those precedents (Humphrey’s Executor v. United States and Morrison v. Olson) are … despised … by just about all of the justices appointed by Republican presidents. They haven’t been overruled yet,³ but they have been heavily narrowed—especially in Seila Law and Collins. Both of those cases held that removal restrictions Congress had imposed upon the head of an executive branch agency with a single director were unconstitutional—in Seila Law, the Consumer Financial Protection Bureau; and in Collins, the Federal Housing Finance Agency.

Against that backdrop, there’s an obvious argument that the for-cause removal protections applicable to the Special Counsel are also unconstitutional. Indeed, there may well be not just five votes on the current Supreme Court for that conclusion, but as many as seven or eight.

But there are also substantial grounds on which OSC could be distinguished from the CFPB and the FHFA (indeed, the majority opinion in Seila Law itself distinguished OSC)—especially because one of the most important purposes of OSC is to provide a mechanism for federal employees to challenge employment-related actions by political appointees. Not only does OSC thus wield a very different kind of power than the CFPB or FHFA, but if OSC, too, had to be headed by a political appointee, then it would be limited to considering employment claims against rogue executive branch supervisors—rather than challenges to conduct that is sanctioned, directly or indirectly, by the relevant agencies’ leaders. Of course, that’s a policy argument for distinguishing Seila Law and Collins. But as will become important in a moment, it’s hardly a frivolous argument—as recent events underscore.

Thus, were the question only whether the Supreme Court is going to uphold the statute Trump violated when he fired Dellinger, the answer would quite likely be “no.” But the Court isn’t deciding (only) that question; it is deciding whether to grant emergency relief in a context in which the Court of Appeals held that it didn’t even have jurisdiction to hear the government’s appeal.

And that … complicates things.

II. The Non-Appealability of Temporary Restraining Orders

In federal courts (and many state courts), a litigant who needs immediate relief will typically seek a “preliminary injunction” to stop the defendant from continuing to take allegedly unlawful action while the case unfolds. And if that’s not immediate enough, the litigant may seek a “temporary restraining order” (TRO), which is meant to be a more expeditious mechanism for providing urgent relief—in exchange for being limited in duration to 14 days.⁴

One of the biggest differences between a TRO and a preliminary injunction is that the former is not, in most cases, immediately appealable—whereas the latter is. This has been a matter of some debate for decades, but the consensus has long been that it would cause chaos if grants or denials of TROs were immediately appealable—since many TROs are entered without the other party even being present; even more of them are accompanied by proceedings that are more truncated than what precedes a grant or denial of a preliminary injunction; and, in any event, the (federal) rules themselves limit a TRO’s duration—so that, by the time the appeal can be fully resolved, the TRO may no longer even be in effect (and any harm suffered by the recipient may be brief in duration).

Courts have recognized two contexts in which TROs can nevertheless be directly and immediately reviewed by appellate courts. First, in cases in which the TRO is clearly an abuse of the district court’s authority, appellate courts have granted writs of mandamus to wipe them away—relying upon the All Writs Act for the proposition that they can issue “extraordinary” relief in cases in which the lower court’s error was indisputably clear and causing irreparable harm.

Second, as Sixth Circuit Chief Judge Jeff Sutton has put it, a TRO may also be appealable when it is, in effect, “a litigation-altering and litigation-ending injunction because it gives the parties no ‘meaningful appellate options’ about a significant issue of law given the imminence of an irreversible event—say an execution, or . . . an election.” Neither of these contexts is present here. With respect to mandamus, even if the Supreme Court is likely to strike down the for-cause removal protections in the OSC statute, it hasn’t yet—and, as noted above, there are plausible grounds on which the most on-point precedents could have been (and were) distinguished. As for the contexts in which TROs have been treated as if they’re effectively (appealable) injunctions, this isn’t one of them. The government will be just as able to defend Dellinger’s removal if and when the district court (soon) issues a preliminary injunction as it is here.

Instead, the government’s principal argument in the Supreme Court is that this TRO should’ve been appealable because (1) it’s interfering with the President’s Article II prerogatives; and (2) Judge (Amy Berman) Jackson has already all-but signaled how she’s going to rule on the preliminary injunction. It’s not clear, though, why either of those arguments support a new ground for allowing an appeal that has not hitherto been recognized. Again, if a district court is flagrantly abusing its power through a TRO, mandamus ought to be an adequate remedy. But if the government can’t meet the high burden on the merits for a writ of mandamus, and if an appeal after a grant or denial of a preliminary injunction is meaningfully available (as it is here), the government should have to wait to appeal. That’s what the D.C. Circuit held Saturday night, and the Supreme Court shouldn’t be able to issue emergency relief unless five or more justices believe not only that the government is likely to prevail on the merits, but that the D.C. Circuit’s jurisdictional holding was itself incorrect. That seems a much closer call to me than the number of votes on the Seila Law/Collins issue.

III. Why a Dellinger Ruling Won’t be a Referendum

To be sure, the Trump administration has fired thousands of federal employees in ways that are being challenged on various statutory and constitutional grounds. But of all of these cases, Dellinger’s is at the extreme end of the spectrum with respect to the strength of the government’s position on the merits, for Dellinger is (or, was?) the head of an agency. This is almost certainly why the government has moved so aggressively in this case—and why the Acting Solicitor General was so intent on taking this issue to the Court in this (premature) posture; unlike in so many of the other suits challenging the new administration’s conduct, the government knows it’s playing a relatively stronger hand.

That’s why, even if the Court uses this opportunity to make clear that all Executive Branch agency heads, or even all single agency heads, must serve at the President’s pleasure, that would tell us nothing about lower-level officers within federal agencies, or, even more importantly, non-officer employees protected from summary and/or arbitrary termination by the Civil Service Reform Act and other statutes. In other words, even within the employment context alone, this case is a massive outlier. Certainly, if the Court were to deny emergency relief because it believes Dellinger is going to win (the least likely outcome, in my view), that would put an awful lot of force behind those other employment-related challenges. But the inverse just doesn’t follow. There will be plenty of viable legal challenges to how Trump is trying to eviscerate the federal bureaucracy no matter what the Supreme Court does here.

Likewise, this case has nothing to do with any of the funding/spending-related litigation rapidly working its way to the Supreme Court. As I noted two weeks ago, even the most ardent zealots of the unitary executive theory have not viewed that understanding as extending to a unilateral presidential power to impound federal funds. Likewise, the unitary executive theory has exceedingly little to do with statutory and constitutional limits on the federal government’s power to impose conditions on the recipients of federal funds. Those cases will charge ahead regardless of what happens here, and it’s virtually impossible to see how the disposition in Dellinger could affect them.

It’s not that this case is unimportant; OSC is the federal agency most obviously tasked with protecting the rights of federal employees (which, presumably, is why kneecapping it is such an important part of the administration’s broader effort to hollow-out the federal workforce). The point is just that an order from the Supreme Court granting the government’s application here is almost certainly going to be good for this train only—and will tell us vanishingly little about all of the other cases that are heading for the Court sooner rather than later. Folks who try to read into such a ruling that the Court is going to side with Trump in all, or even most, of those cases will, in my view, be making a serious mistake; it’s entirely possible that Trump loses most of these cases, but wins this one.

The flip side is also true. If the Court denies the government’s application, it will almost certainly be on procedural grounds that are specific to the context in which this particular application arose. Not only would I expect the Court to say as much, but I wouldn’t be surprised, if this is the outcome, for it to be accompanied by a multiple-justice statement respecting the denial that emphasizes how strong the government’s case is on the merits—to put a thumb on the scale of what happens in the district court and D.C. Circuit if this case moves forward. Thus, folks should not take a denial in this case, especially if it’s on procedural grounds, as a harbinger of what’s coming in the future cases either.

I understand why many will be tempted to read into this case some deeper conclusion about where the Court is going. The point of this post is to provide reasons why that temptation should be resisted. Very little that the Supreme Court does or says in Dellinger is likely to bear upon what it does or says in the next Trump II cases to reach the justices. And those cases will get to the Court soon enough.

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SCOTUS Trivia:
A Reminder on Emergency Application Data

The academic project that eventually became The Shadow Docket started in the summer of 2017 as a nerdy series of tweets in which I tracked the (first) Trump administration’s seemingly unprecedented number of emergency applications to the Supreme Court.

With the first application from the second Trump administration now on the books, it seems like a good excuse to remind folks of just how much the first Trump administration super-charged the Court’s emergency applications practice. From 2001-2017, across two very different two-term presidencies, the federal government sought emergency relief from the Supreme Court a total of eight times (so, on average, once every other year). The Court granted four of those applications and denied four, but all but one of the eight rulings provoked no public dissent. During the first Trump administration, the Justice Department asked the justices for emergency relief 41 times—with the Court acquiescing in whole or in part on 28 of the 36 that produced an up-or-down ruling, and with a significant majority of those 36 orders producing public dissents.

The Biden administration ultimately sought emergency relief from the justices 19 times, with the Court granting 10 of the applications (a remarkable total given the ideological daylight between the administration and the Court). 13 of those 19 dispositions came with public dissents.

This isn’t exactly going out on a limb, but I suspect we’re in for numbers that will be much closer to what we saw from 2017—21 than from 2021—25.

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1. You may know it better as “Presidents’ Day,” but federal law doesn’t.

2. The Supreme Court thus relied upon the CSRA’s “comprehensive” review scheme when, in 1983, it held that federal employees couldn’t bring damages claims against superiors who took adverse employment action in violation of the employees’ First Amendment rights.

3. The Acting Solicitor General has notified Congress, as DOJ is required to do by statute, of the government’s intent to ask the Court to overrule Humphrey’s Executor in an appropriate case.

4. We’ve also seen a handful of judges in some of the cases challenging the new administration’s policies issue “administrative stays” as even-more-short-lived precursors to TROs. Indeed, Judge Jackson issued one in this case before she issued a TRO. As I hope to explain in a future post, I’m not wild about this development. But (1) these orders in Trump cases have, to this point, been exceedingly brief; and (2) Texas judges used much longer ones to thwart several Biden administration policies without much objection.