President Trump's showdown with the administrative state has reached the Supreme Court, with the president's lawyers asking the top court to uphold his power to fire executive branch officials.
The case is a test of Trump's power, and the willingness of the Supreme Court to let him exercise the full scope of executive authority granted by the Constitution.
Trump's firing of Hampton Dellinger, a Biden appointee in charge of the Office of Special Counsel, is at the center of the dispute. The Office is responsible for guarding federal employees such as whistleblowers from retaliation.
Dellinger has said the Office of Special Counsel is needed "now more than ever" to stop Trump's purge of the federal bureaucracy.
Despite Dellinger's clear opposition to the administration's priorities, Judge Amy Berman Jackson, an Obama appointee, ordered Trump to reinstate Dellinger for at least two weeks. The judge ruled that Trump cannot, under federal law, fire Dellinger without cause.
"Until now, as far as we are aware, 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 DOJ's motion says.
On Saturday night, a divided panel of the appeals court in D.C. denied Trump's appeal, finding the president did not face any harm that warranted immediate relief. But Trump appointee Greg Katsas dissented, calling Jackson's order "virtually unheard of."
“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.
While it remains to be seen how the Supreme Court will respond, it is likely that at least some of the conservative jurists will sympathize with Trump's broad view of executive power.
The Justice Department has called on the court to overturn the 1935 precedent Humphrey's Executor, which constrains the president's power to fire officials at independent agencies with a "quasi-legislative or quasi-judicial" function. Some conservatives - including Supreme Court Justice Clarence Thomas - have said Humphrey's Executor threatens the constitutional power of the president.
In her emergency motion to the Supreme Court, Trump's Acting Solicitor General Sarah Harris called Jackson's temporary restraining order (TRO) an "unprecedented assault" on the separation of powers. Since the Special Counsel is an "investigative and prosecutorial" agency, it falls squarely under the president's authority, and well outside Humphrey's narrow exception to his "unrestricted" power of removal, Harris said.
The implications of the case extend far beyond the president's power to fire officials, Harris noted, pointing to a series of sweeping court injunctions against the Trump administration that appear to "intrude upon a host of the President’s Article II 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," Harris wrote.
