The Trump administration has made its first appeal to the Supreme Court, as a standoff escalates between the president and activist judges trying to thwart his agenda.
The emergency motion, filed Monday, asks the highest court in the land to allow Trump to fire a Biden-appointed executive branch official.
“Until now, as far as we are aware,” the administration wrote, “no court in American history has wielded an injunction to force the President to retain an agency head whom the President believes should not be entrusted with executive power and to prevent the President from relying on his preferred replacement.”
The case is an important test of where the Supreme Court may fall in Trump's battle with the federal courts, which have blocked several of his executive orders in sweeping fashion.
Last week, a district court judge appointed by Barack Obama issued a temporary restraining order (TRO) commanding Trump to reinstate Hampton Dellinger, head of the Office of Special Counsel, for at least two weeks.
In an emergency application to the Supreme Court, the administration argued Trump engaged in an "uncontroversial exercise of his Article II powers" by firing Dellinger, a Biden appointee. The administration called the court's injunction an "unprecedented assault" on the Constitution's separation of powers.
"This court should not allow lower courts to seize executive power by dictating to the president how long he must continue employing an agency head against his will," Sarah M Harris, acting solicitor general, wrote.
A divided panel of the D.C. appeals court denied Trump's appeal on Saturday in a 2-1 vote, with two Biden judges, Florence Pan and Michelle Childs, rejecting the claim on procedural grounds.
They said the president could afford to wait two weeks for a preliminary hearing, but Trump appointee Gregory Katsas called the injunction "virtually unheard of" and said an exception to ordinary procedure is warranted by the circumstances.
“The extraordinary character of the order at issue here — which directs the President to recognize and work with an agency head whom he has already removed — warrants immediate appellate review,” Katsas wrote.
The Trump administration says the president has "unrestricted" power to fire principal officers such as Dellinger, who was nominated by Biden and confirmed by the Senate. While there are narrow exceptions to the president's power to remove executive officials, they do not apply in this case, the Trump administration said.
Despite being part of the judicial branch themselves, the Supreme Court's conservatives may frown upon lower courts gumming up the Trump administration with universal injunctions. The Supreme Court upheld broad presidential immunity last year, and some of the conservative justices have criticized the 1935 precedent Humphrey's Executor, which places limits on who the president can fire.
Since TROs are not typically appealable, Trump has had myriad of his presidential powers taken from him with no chance of immediate relief, the administration said.
"The United States thus respectfully requests that this Court vacate the district court’s order and end the practice whereby courts seize Article II powers for two weeks, yet disclaim the availability of any appellate review in the meantime," the administration wrote.
