The ruling on the case of fired Special Counsel Hampton Dellinger was postponed by the US Supreme Court. In a decision that saw dissents from four justices, the Supreme Court opted to defer ruling on the government’s appeal of the order reinstating Dellinger until the DC Circuit delivers its decision on Wednesday. Chief Justice John Roberts, writing for the majority, stated, “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.”
The background to this is that President Trump removed Dellinger from his position as head of the Office of Special Counsel. Dellinger, the sole proprietor of the office, is safeguarded from dismissal by law except in cases of “inefficiency, neglect of duty, or malfeasance in office.” Dellinger took legal action, resulting in a trial judge issuing a temporary restraining order reinstating him. The government appealed to the DC Circuit, which, in a 2-1 ruling, supported the TRO despite a strong dissent. Subsequently, the government swiftly appealed to the Supreme Court, viewed by some as part of Trump’s challenge to certain legal precedents that enable the Administrative State.
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Justices Sonia Sotomayor and Ketanji Brown Jackson expressed their inclination to have outright denied the Trump administration’s request. On the contrary, Justices Neil M. Gorsuch and Samuel A. Alito Jr. would have overturned the TRO.
The bottom line here is that SCOTUS is giving the DC Circuit the chance to make a ruling before moving ahead. Indeed, it seems to be giving the DC Circuit time to tap the brakes on this action. If the appeals court sustains the existing order, it will be dumped right back in the Supreme Court’s lap as an emergency appeal by the government. If the current order is set aside but the case is allowed to proceed, then everyone has more time to think about what is going on.
…Sonia Sotomayor and Ketanji Brown Jackson wanted to deny the application while Justice Neil Gorsuch and Justice Clarence Thomas wanted to grant it. That leaves five who clearly wanted this cup to pass from their lips — at least for the moment…
— Jonathan Turley (@JonathanTurley) February 21, 2025
…The Court could still act. However, at most, this litigation will only likely alter the schedule, not the outcome. However, it is interesting that the other justices wanted to wait on these issues. This was the first such challenge to reach the court. The justices clearly want…
— Jonathan Turley (@JonathanTurley) February 21, 2025
Basically, there are only 3 business days left.
The Court issues this non-decision on a Friday afternoon, when the TRO expires next Wed.
The District Court will need to either 1) let the TRO expire and deny the injunction or 2) convert the TRO formally into an injunction.… https://t.co/6iubB7IGXh
— Shipwreckedcrew (@shipwreckedcrew) February 21, 2025
My gut feeling is that, for reasons I laid out in , Dellinger’s case is much closer to the Consumer Financial Protection Bureau case that resulted in the protection given that agency’s director being tossed than it is to the safe harbor of Humphrey’s Executor. Dellinger is not in charge of a “quasi-legislative” or “quasi-judiicial” organization; he wields quintessentially executive power, and to insulate him from the chief executive of the land is unconstitutional. In his dissent, Gorsuch basically said there was no legal way to reinstate Dellinger. But as Jonathan Turley said, a majority of the Supreme Court would rather this case go away than rule on the facts it offers.
