Last week, I wrote a column questioning the legal basis for the opinion by Judge Amy Berman Jackson in favor of fired Special Counsel Hampton Dellinger. It appears that the D.C. Circuit agrees. An appellate panel just permitted the removal of Dellinger just four days after Jackson declared the removal “unlawful.”
Judge Jackson had a good-faith reliance on her narrow reading of existing precedent. However, the precedent is far from conclusive and brushes over some striking conflicts with prior rulings of the Supreme Court.
It is unclear whether the current Supreme Court would agree with an exception for minor or de minimus intrusions. Many scholars and judges believe that a president either has Article II authority to fire executive branch officials or he does not.
The D.C. Circuit agreed to stay the order of Jackson pending appeal and included this language in the short order:
“FURTHER ORDERED that the emergency motion for a stay pending appeal be granted, and that the district court’s March 1, 2025 order be stayed pending further order of the court, except to the extent that order vacates the Temporary Restraining Order entered by the district court on February 12, 2025. This order gives effect to the removal of appellee from his position as Special Counsel of the U.S. Office of Special Counsel.”
Dellinger is now likely to appeal and the matter can go to the Supreme Court.
As I wrote earlier, I do not believe that this fight is ultimately about Dellinger. Once again, I have little doubt that he will be removed. The only question is when and how.
The real interest of the Administration, in my view, is to challenge long-standing limits put by the Court on presidential authority under Article II. The most obvious target is Humphrey’s Executor v. United States (1935), which established the right of Congress to create independent agencies. As I noted in the prior column:
“It found that Congress could, without violating Article II powers, provide tenure protection to “a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power.” The Court in cases like Seila Law cited that precedent for one of the exceptions to executive power. It also cited an exception for giving tenure protection to “certain inferior officers with narrowly defined duties,” under Morrison v. Olson (1988). Jackson cited both cases and those exceptions in shoehorning the Special Counsel into a narrow band of quasi-executive positions.
What may be overlooked in the filings of the Administration before the Supreme Court in the Dellinger case was this line in a footnote: “Humphrey’s Executor appears to have misapprehended the powers of “the New Deal-era [Federal Trade Commission]” and misclassified those powers as primarily legislative and judicial.” It went on to suggest that the case is not only wrongly decided but that the Justice Department “intends to urge this Court to overrule that decision.”
Described by the Court as “the outer-most constitutional limits of permissible congressional restrictions on the President’s removal power,” the Trump Administration appears set to try to redraw that constitutional map.”
The question is whether Dellinger wants to risk being the vehicle for such a potential major reframing (and enhancement) of presidential power. I viewed the Jackson order as not just expected but welcomed by the Administration. If it wanted to challenge these cases, the Jackson opinion was the ideal foundation for the Administration.
Even if Dellinger drops his case, there are other cases in the works that could bring the same review by the Court. However, in my view, Dellinger is the best option for the Administration in offering a clean, threshold question on the scope of presidential authority to fire executive branch officers.
“I’ll get the war with Ukraine and Russia ended. If I’m President-Elect, I’ll get it done before even becoming president.” — Donald Trump at the September 10, 2024 debate with Kamala Harris.
Trump’s an utterly incompetent pathological lying moron.
Trump orders 250,000 Ukrainians in the US to be deported.
Many are men who were ordered to report for military Ukrainian duty, training & deployment.
They must return to their homeland to reproduce, Zelensky killed off all the rest of the men.
There’s another 3 million Ukrainians who fled to the EU. Many military draft age Ukrainian men were ordered to report for military duty and went AWOL.
Let the US clean the dirty dishes. And pay for it.
Turley should write a related article on the failure and dereliction of “State Medical & Legal Bar Associations” – do these watchdog groups really serve a purpose?
In the early 2000’s multiple attorneys, of both parties, blatantly violated Ronald Reagan’s Torture Treaty (the supreme law of the United States under Article VI).
Reagan’s treaty (codified into federal criminal statutes) outlawed torture, blacklisting, false imprisonment and any cruel treatment by American officials. Doctors are technically prohibited from participating in torture.
For the first time in over 200 years, the United States was denounced by the International Red Cross [Christian founded organization], Amnesty International, Human Rights Watch and other reputable groups opposed to human rights abuses.
Supporters of foreign style torture and cruel treatment claimed the results was worth destroying America’s reputation as the good guys! The opposite was true based on the government’s own records.
The independent 9/11 Commission concluded torture and cruel treatment didn’t work, it was counter-productive – creating more future enemies than keeping us safe.
The program violating Reagan’s Treaty and greenlighted by torture attorneys and torture doctors, had a nearly 90+% failure rate, if comparing terrorism-authorities vs. terrorism-convictions.
In the early 2000’s politicians misled voters calling the Gitmo detainees “the worst of the worst” so dangerous they couldn’t be imprisoned inside the United States. Just a few years later nearly 90% (so-called worst of the worst) were released without any charges whatsoever, without any supervision whatsoever. Most detainees were not even captured on any battlefield and there was no legitimate evidence of any links to any terrorism.
American officials simply handed out millions of taxpayer dollars to tribal chieftains and warlords in Afghanistan and Iraq to simply turn over bad guys. So the tribal chieftains and warlords simply handed over people they disliked or competing tribes with no ties to terrorism whatsoever – to be tortured using American tax dollars.
At the time, about 200 FBI agents walked away from the torture program (a program illegal under federal law) disgusted by the human rights abuses.
Torture opponents back then warned these authorities could be used against American citizens on U.S. soil. Jose Padilla (U.S. citizen) was then tortured. John Ashcroft (member of the Missouri legal bar) then tortured Americans by abusing the federal “Material Witness Statute”. A panel of federal appeals court judges ruled Ashcroft fraudulently abuses his authority. Ashcroft’s innocent victims have never been made whole as of 2025, Ashcroft hasn’t issued a single apology to his victims.
Today, more than 20 years later, none of the state level professional bars have penalized or disbarred any of those violating federal criminal law that prohibits torture and cruel treatment. Not saying the subordinate order-takers should now be punished, but what’s the deterrent-effect to prevent these criminal acts from happening in the future by future government attorneys?
““State Medical & Legal Bar Associations” – do these watchdog groups really serve a purpose?”
Do they serve a purpose? Yes. Are they effective watchdogs? Hell, no. The purpose they serve (and probably were always intended to serve) is generating favorable publicity for the profession. Doing an effective job of policing their professional members could potentially impair that main purpose. Occasionally an association may reprimand a member, but I would bet you good money that those reprimands are overwhelmingly based on popularity of the target among other members, not any objective standards.
Hampton Dillinger, Blue Blood snob, friend of the Biden’s and a DEM activist, will in the end shown the door if he decides to appeal. I suspect he is not making the decisions, its the Eisen lawfare crowd dictating to Dillinger what to do. After the DEMS/Dillinger lose this case, next will be the Merit Board DEM that has no legal basis to stay in her position except for the help of another Activist Liberal DEM Judge. As Jonathan states in the end Trump becomes stronger with these law suits and his eventual wins. DEMS have nothing but Lawfare, not even the majority of the US support the DEMS actions. DEM Party is lost in the Wilderness and lead by a bunch of Woke Corrupt Liberal power hungry DEMS who will drag down this party.
“Hampton Dillinger, Blue Blood snob, friend of the Biden’s and a DEM activist”
Just an idle, tongue-in-cheek jibe, but can we begin referring to Hampton Dillinger as “Public Enemy Number 2”?
PROOFREADER: The second sentence should read “It appears” and not “It also.” Please do better.
A little history: John Dilliger Public Enemy #1….You got me
The FBI’s J. Edgar Hoover assigned South Carolina’s own “G-Man” Melvin Purvis to hunt down and put an end to Dillinger once and for all. And he did!
There’s a simple solution to the problem. President Donald Trump should pack the Supreme Court. The caterwauling from the left would be music to my ears. If Trump tried to pack the Supreme Court he would be declared the enemy of democracy but if Biden would have tried to do it he would have been hoisted as a hero. The hallowed code of ethics on the left should be inscribed in stone “The ends justify the means.”
After the senate gets rid of the filibuster, as the Democrats wanted.
I love how these guys, like Dellinger, are helping Trump and conservatives by getting the Supremes to finally end the bureaucratic state. We are seeing agencies lose some of their power through the Court and now we will see some of the bureaucracy shrink in size and power.
That’s not what they are doing. Trump is side-stepping the law to rule by decree. Dellinger can only be fired for specific reasons, none of which the Trump administration. has shown to be the case. That’s the problem. Trump’s DOJ is trying to avoid the obvious by claiming Trump can fire him for just cause because he has the authority to ignore the law.
“Judge Jackson had a good-faith reliance on her narrow reading of existing precedent. However, the precedent is far from conclusive and brushes over some striking conflicts with prior rulings of the Supreme Court.”
Professor Turley shows extremely naive (at best) latitude in stating that opinion. Should Jackson not have been, or have made herself, aware of those conflicts before issuing her opinion?
Latitude in declaring Jackson’s reading to be “in good faith” in case that was not clear.
john roberts has cemented his reputation as equal to roger taney – robert’s decisions- in citizen’s united, shelby county and most especially trump v u s – rank him as among the absolute most corrupt, unethical chief justice in our history -this decision is just a continuation of trump v u s – sad
I always thought Dred Scott was a great decision, which was not a popular view back in law school. But no one could ever explain why judges should just “make” law to me. They did cry a lot about how slavery was bad, which I found beside the point. Slavery was legal, and the court had no authority to make it illegal.
Dear Mr. Turley, These folks thought they had Mr. Trump wrapped up and had visions of him sitting in a jail call. Thankfully, the American people saw through it and re-elected him as President. It was glorious watching him Tuesday night in front of all of those dower democrats. Thankful he is President!!!
22.7% of eligible voters in the US voted for Trump. The American people did not see through anything. Trump is a mentally ill pathologically lying rapist. Fact.
You’re a funny guy.
Three fingers pointing back at you, bub.
Have Democrats offered a rationale for not wearing their red clown noses during the speech? They dressed in pink – I suppose to signify solidary with the kooks who wore pink puzzy hats a few years ago – and further degraded themselves by holding up their silly signs.
Since they want to be perceived as wholly unserious people, I can not fathom why they did not complete the costume by wearing red clown noses.
Judge Amy Berman Jackson…another incompetent Harvard hack struts her stuff (again).
“Many scholars and judges believe that a president either has Article II authority to fire executive branch officials or he does not.” How can a CEO not have a right to terminate contracts of those under him whenever s/he deems it necessary? You didn’t see judges leaping to the defense of Mattis, or any of the other Exec officials Trump swapped out in his first term. Or, is it because Dellinger is (D)ifferent?
A roundabout way of saying Trump was not “authorized” by the Constitution, to hire/ appoint Elon Musk.
I think that’s ultimately what they want to get at, even though the ones pushing it the hardest are all paid by, and hire, unelected persons for their own offices and cabinets.
I don’t just want these criminal special prosecutors and deep state actors removed…I want them JAILED for LONG periods! Enough!
Lawfare 666,666,666.0 REMOVED
TIME TO BRING THE HAMMER on the judiciary branch!
so when judges are consistently wrong…when do we FIRE THEM?
You don’t. You can impeach them, but you won’t get the votes in the Senate absent clear evidence of bribery. Time to move on from this line of thought
Correct, all that we can do is allow them to be reversed, over and over again, until no one wants their cases brought in the courts of these obviously ideology-driven ecuses for justices. We can eliminate them through broadcasting all of their losses and reversals to the point that their incompetence is just a matter of fact; labeling them useless pieces of the old apparatus of prog/left attempts at destroying our constitution – relics from a failed ideology.
I’m still thinking, “Three Reversals and You’re Out”, including forfeiting all taxpayer-paid pensions, isn’t the worst idea I’ve suggested. Would seem to be incentive to “judge better” from the start.
“Three Reversals and You’re Out”
Is 3 reversals sufficient? My previous objection to that has not changed which is, what happens when a judge who is making rulings that are correct according to law is reversed by activist judges on higher courts, and removed on that basis? How would you prevent that from happening? Maybe some additional criteria might help forestall that possibility: number of reverses per time period; suspension after a small number of reverses, followed by getting tossed after two suspensions; etc. Just spitballing there, but I do have concerns about some arbitrary criterion getting the “wrong” judges tossed.
Since inferior courts are a creation of Congress, Congress is free to set qualifications for “good behavior” and apply them with a simple majority vote of each house.
Whether Congress has the intestinal fortitude to do so is an open question.
Can we get the video of Dellinger being frog-marched out of his office for the final time? HAHA! Wait until the rest of the whiners are frogged as well!!!
About time.
It would be nice if these activist judges stayed in their own lane, the government might have a shot at cleaning up the messes?
One small step for [a] man, one giant leap for mankind.