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.
It is amazing to me that the Supreme Court ruled in Humphrey’s Executor v. United States (1935), that Congress could create an agency that had an independent existence from the Executive, I will have to read it in more detail to see how that New Deal court threaded the needle of permitting such an administrative agency to exist.
From what I read here, the court asserted that the agency did not perform any Executive functions, but “only” legislative and judicial functions.
But that ignores the effectivity that the agency would have on the Executive after it made those legislative/judicial actions. If the Executive has any mandate to follow the conclusions/actions of said agency, then there is the violation of the Constitution.
We need Amy Berman Jackson, Amy Coney Barrett, and Ray Epps to install a New Corrupt Deep State World Order in America. They and their Deep State Masters know what’s best for our country. We also need to understand that Corruption is a good thing, not something to be criticized or loathed. Corruption is the engine of war and fascism, which are also good things, provided they are run by benevolent Corrupt Deep State operatives, like Amy Berman Jackson, Amy Coney Barrett, and Ray Epps. Americans must be forced to realize that the Constitution is a worthless, annoying, and troublesome document that needs to be eradicated from American life as we enter the new dawn for American enslavement for the common good. Instead of having a President and Vice President in charge of the Executive Office, we need to merge all three goverment entities (Executive, Judical, and Legislative) into one strong entity to carry out the mandates of the Corrupt Deep State. Who better than Amy Berman Jackson, Amy Coney Barrett, and Ray Epps to be the figureheads for this bold new society? Only THEY can save America from herself. In your heart, you know I’m right!
@Turley,
The latest is that he wants this to be dropped claiming the issue is moot and he’s not fighting it.
The DOJ says no, its not moot and wants the Appeals Court to render a final w Prejudice ruling.
Now its less about this maroon. He admitted he’s toast and he’s not looking to fight it.
But what happens is that once the appeals court makes their ruling … all those other judges who are saying those other people were illegally terminated and they should be let back in?
All those cases go bye bye and Trump can remove them all and then start pushing back on the other issues.
These activist judges should be removed for violating their canons.
Its sad that SCOTUS didn’t step up and Roberts is a tool for making some of the decisions he’s been making.
SCOTUS needs to step in here. End this frivolity.
-G
In 2008 the result of Bill Clinton’s removal of the Glass-Siegel act coupled with Fannie Mar and Freddie Mac unvetted mortgage loans took its toll on the IS economy. It nearly destroyed our country, I lost my six figure job and it wasn’t until 2011, that I once again found employment. It was a$50K/yr pay cut for local government. My one time State position was not looking as bad as it was. Those people never missed a pay raise, a vacation, their healthcare, or the ability to earn comp time. Three years as the development industry floundered these State agencies remained full staffed without one layoff. Now we’re supposed to feel for these ticks? Enjoy the suck!
No need to do anything just simple work to do you just need good internet connection do work and get paid weekly
or everyday….. https://find2boost21.blogspot.com/
drop dead
Stegall
Excellent summary by Prof. Turley. Humphrey’s Executor failed to indicate the bright line between Executive and Legislative powers, basically creating a major back-door in the Separation of Powers.
Amy Berman Jackson and Ray Epps in 2028!!! Only THEY can save And preserve our esteemed, precious, sacred, and holy Corrupt Deep State. Yes, corruption is a good thing because Deep State experts have found that only corrupt Deep State members have the integrity and fortitude to bring about change that best benefitis our Corrupt Deep State system of government. Also, although RINOs tend to be good servants of our precious, holy Deep State enterprise, the Dunceocrats tend to be the more reliable of the two corrupt parties. Go, Amy Berman Jackson and Ray Epps!!! America needs you to restore and maintain our esteemed, precious, sacred, and holy Corrupt Deep State.
Earlier I commented that the Dellinger case could backfire badly on liberals due to the Court ending this bureaucratic tyranny once and for all and I believe I just heard that Dellinger dropped the case for just that reason.
Medicaid is unconstitutional.
Congress has the power to tax for only debt, defense, and “general Welfare” – all, or the whole, well proceed.
Medicaid covers perhaps 20% of the population and is distinctly not debt, defense, or “general Welfare.”
The singular American failure is the judicial branch, with emphasis on the Supreme Court.
You must like 3rd worlds?
Government provided crappy health care is a signature element of 3rd world countries
I like law.
Trump has broken their brains. The Dems’ ability to exercise sound judgment has fallen off a cliff with the “fighting Dem women” ad.
https://www.outkick.com/culture/insufferable-democratic-women-just-unleashed-video-so-embarrassing-may-never-win-another-election
😂 it’s a joke?
The American Founders established a restricted-vote republic of freedom, free enterprise, free markets, and private property.
The communists (liberals, progressives, socialists, democrats, RINOs, AINOs) “fundamentally transformed” the nation of the Founders into a wholly unconstitutional, one man, one vote, communist welfare state.
The rational vote qualifications of the Founders: Male, European, 21, 50 lbs. Sterling/50 acres.
If Dellinger appeals to the US SupCt, it will give Roberts another chance to build on the “legacy” of the so-called Roberts court – the one that depends on his erroneous and incorrect vote to demonstrate its impartiality.
I wonder who in the Dem party and its propaganda arm, the MSM, thought it would be a good idea if their new enemy was 13-year-old brain cancer survivors and women murdered by illegal aliens?
Don’t worry if you are a lert then get life alert. Just press the button.
The judicial branch is charged with adjudication, not copying and pasting.
Incorrect precedent constitutes unconstitutional amendment, as was the case with Roe v. Wade and Texas v. White.
It is not precedent but the Constitution that holds dominion and is “the supreme law of the Land.”
“The supreme Law of the Land” vests the executive power totally and exclusively in “a President”; it vests no executive power in the legislative or judicial branch.
No legislation or adjudication that exercises any aspect, facet, degree, or amount of executive power is constitutional.
The Constitution distributes the unassailable, absolute power of the King in distinct and particular areas of governance.
“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,…” and those judges must be impeached and convicted “during [bad] Behaviour.”
The singular American failure is the judicial branch, with emphasis on the Supreme Court.
_________________________________________________________________________________________________
Article 2, Section 1
The executive Power shall be vested in a President of the United States of America.
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Article 6
This Constitution…shall be the supreme Law of the Land;….