Trump admin goes to SCOTUS to fight for right to fire protected agency head

The head of the U.S. Office of Special Counsel cites legal protections against removal. Also: Trump's efforts to control culture. And, for paid subscribers: Closing my tabs.

On Sunday, Acting Solicitor General Sarah Harris warned the Supreme Court of “an unprecedented assault on the separation of powers“ that demanded “immediate relief.”

Of course, this is the argument that those challenging the Trump administration’s early actions have been making themselves in court, highlighting the failure of the administration to respect the agencies established by Congress or the funding appropriated by Congress in the administration’s effort to dismantle wide swaths of the federal government — up to and including efforts to shutter entire agencies.

But here, Harris argued that congressional limits on the removal of the head of the U.S. Office of Special Counsel are unconstitutional, that the current effort to enforce those limits should fail, and that a district court order keeping Special Counsel Hampton Dellinger in office during litigation “inflicts the gravest of injuries on the Executive Branch and the separation of powers.“

The Office of Special Counsel — not to be confused with special counsels appointed within the Justice Department — is responsible for protecting federal employees’ merit system and protecting whistleblowers. The limits state that the Special Counsel is nominated by the president, subject to Senate confirmation, for a five-year term and can only be removed by the president “for inefficiency, neglect of duty, or malfeasance in office.”

When Trump fired Dellinger, he sued, and U.S. District Judge Amy Berman Jackson issued an administrative stay initially keeping Dellinger in office for two days while she considered the request. DOJ appealed that order to the U.S. Court of Appeals for the D.C. Circuit, which rejected the request on a 3-0 vote. Then, with additional review, Jackson issued a temporary restraining order keeping Dellinger in place while a preliminary injunction request could be considered. While TROs aren’t generally appealable due to the time-limited nature of their effect, DOJ nonetheless went to the D.C. Circuit again. This time, the request was rejected on a 2-1 vote.

The per curiam opinion, on behalf of Judges J. Michelle Childs and Florence Pan (both Biden appointees), held that the court lacked jurisdiction over the appeal. In other words, the majority held that the government needs to wait for a normal appeal of the preliminary injunction, should Dellinger succeed there.

However, Judge Gregory Katsas, a Trump appointee, dissented, arguing that the district court “usurped a core Article II power of the President” in putting Dellinger back in office. Additionally, as to the substance, he wrote, “Congress cannot constitutionally restrict the President’s power to remove the Special Counsel.”

In response, the per curiam order noted, “Our dissenting colleague deems the TRO ‘extraordinary’ because it ‘directs the President to recognize and work with an agency head whom he has already removed.’ … That assertion declines to recognize the possibility that the removal may have been unlawful.”

In its briefing at the D.C. Circuit, DOJ made clear that it would almost certainly take the matter to the Supreme Court if needed. And, on Sunday, it did.

DOJ argued in its brief that “the Executive Branch has repeatedly raised constitutional objections to that restriction on the President’s removal power,” but it only cites an Office of Legal Counsel memo regarding “proposed” legislation back in 1978, a Reagan pocket veto that would have given “additional powers” to the Special Counsel, and a brief filed by the first Trump administration in the fall of 2020.

On the substance, DOJ argued that precedent is clear that “Article II empowers the President to remove, at will, the single head of an agency, such as the Special Counsel” and that “district courts lack equitable power to reinstate principal officers.” Applying that to this case, Harris concluded: “By transgressing both of those lines of precedent, the district court erred in ways that threaten the separation of powers.”

In recent years, it is true, the U.S. Supreme Court made clear that certain single-person agency removal protections are unconstitutional, Dellinger argued below that the Office of Special Counsel is different from those agencies.

“While the OSC’s work is essential, it occurs within a ‘limited jurisdiction’ related to federal employers and employees,” Dellinger’s lawyers wrote at the U.S. Court of Appeals for the D.C. Circuit. “It poses no ‘special threat to individual liberty’ for the Special Counsel to receive limited independence from direct political control in reviewing and investigating confidential whistleblower reports from federal employees.”

As to the history that DOJ claimed, Dellinger noted that “the OSC’s structure—including its for-cause removal provision— reflects a heavily negotiated inter-branch resolution that was embraced by President Bush when he signed the Whistleblower Protection Act …. In fact, not one, but two presidents — Carter and Bush — signed legislation with for-cause removal protections at the OSC, making clear that any interstitial concerns raised by their subordinates at OLC had either been addressed or overruled by the Office of the President.“

It should not be lost that the Trump administration’s first shadow-docket request at SCOTUS is an effort to end the small measure of independence that a person has been given whose job is to protect federal employees from wrongdoing in the workplace.

Expect more on this at Law Dork.

---

Controlling the law and culture, erasing our history

President Donald Trump’s efforts to harm minority communities is aggressive and is seeking to operate both on the law and outside of it throughout our culture.

Among those targeted have been Black and brown people; LGBTQ people, with transgender people targeted relentlessly; women; migrants; and people with disabilities.

In order to do so, the Trump administration is taking many steps that amount to little more than totalitarian censorship and public eradication. Importantly, many of the steps are taken simply by Trump stating them to be so through executive orders — without any clear legal rationale (and sometimes clearly contrary to law), let alone legislation, to support the steps.

After firing the Democratic-appointee commissioners and the general counsel of the Equal Employment Opportunity Commission, the remaining leadership — despite lacking a quorum — and acting general counsel are now using Trump’s anti-transgender executive order defining “sex” to exclude transgender people as a fig leaf justifying ignoring applicable Supreme Court precedent and ending litigation that was aimed at protecting transgender people from discrimination in the workplace.

First reported by Abby Vesoulis at Mother Jones on Friday, the EEOC has filed several notices that it is dismissing lawsuits that it brought against employers for allegations of anti-trans workplace discrimination because “The EEOC’s continued litigation of the claims in this action may be inconsistent with the Order ….“

The EEOC’s act of applying the executive order to workplace discrimination claims is particularly offensive and lawless given that the U.S. Supreme Court, in 2020’s Bostock v. Clayton County, held — in an opinion by Justice Neil Gorsuch — that the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 includes discrimination on the basis of gender identity and sexual orientation. What’s more, that ruling followed a decision from the EEOC more than eight years earlier to the same end.

That is but one of dozens of acts or erasure and eradication being carried out by the Trump administration. The acts are being done in the law, throughout government, and even outside of government through efforts to control culture and private businesses.

The Trump administration literally erased “transgender” from the National Park Service website for the Stonewall National Monument this past week — prompting protests.

The threats to funding within the broader “diversity” sphere — efforts to make our civil rights real — are leading to upheaval within the federal government, but they also have resulted in dramatic shifts elsewhere, including in higher education, long before any enforcement action has been taken.

On February 5, for example, the University of North Carolina System — citing fear over its “$1.4B in critical federal research funding“ — announced that “effective immediately, all general education requirements and major-specific requirements mandating completion of course credits related to diversity, equity, and inclusion, or any other topic identified in Section VII of the Equality Policy are suspended.“

Yes, Trump’s executive order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity“ led a leading public university system to end any course requirements that would include, for example, efforts to teach history students about America’s history of discrimination or to teach would-be medical professionals how to serve diverse communities.

That was just the beginning on that front, as CNN reported Sunday.

And, of course, there is the Kennedy Center.

Donald Trump’s actions to overtake the Kennedy Center and install Ric Grenell as the head of the arts center are a frightening example of how his goals go far outside the law and government. The takeover — which included multiple anti-drag statements from Trump — already has apparently led to one show’s planned tour being canceled, along with many artists severing their ties.

Relatedly, there are already questions of how Trump’s anti-diversity and anti-queer positions will affect arts grants.

All of this in the first four weeks of the new administration.

---

Closing my tabs

This Sunday, here are the tabs that I am closing: