Trump’s lawyers ask Supreme Court to fast-track approval of agency officials’ firings

WASHINGTON — President Trump’s lawyers alerted the Supreme Court over the weekend to what they called “an unprecedented assault on the separation of powers that warrants immediate relief.”

They were upset because a federal judge in Washington had temporarily blocked for 12 days the firing of the appointed head of a whistleblower unit created by Congress in 1978.

The emergency appeal went first to Chief Justice John G. Roberts Jr. Whatever he and the court decide, it is likely to draw wide attention.

It will mark the first time the high court acts on a legal claim arising from the new Trump administration.

At issue more broadly is the question of whether Congress can impose limits on the president’s power to control the government.

For more than a hundred years, Congress has enacted laws that create independent agencies, like the Federal Reserve to regulate the money supply and the Securities and Exchange Commission to regulate Wall Street. It has also created dozens of other semi-independent commissions and boards.

Conservatives argue the Constitution puts all executive power in the hands of the president, and they object to these independent agencies.

But that far-reaching dispute is not likely to be resolved definitively or quickly at the Supreme Court.

This week’s emergency appeal is more likely an opening shot. And using a fast-track procedure may undercut the prospects for a clear ruling.

When President Carter signed the whistleblower law, he said the new Office of Special Counsel would become an independent legal agency within the government.

It “would safeguard the rights of federal employees who blow the whistle on violations of laws, including by their supervisors,” he said.

Last year, President Biden appointed Hampton Dellinger to the five-year term set out in the law, and he was confirmed by the Senate.

On Feb. 7, Trump’s personnel director sent Dellinger a one-sentence email saying was “terminated, effectively immediately.”

Dellinger sued, arguing his firing without cause was in “flagrant disregard” of the law.

On Sunday, Trump’s lawyers said it “raises grave issues of democratic legitimacy and electoral accountability” if Dellinger is allowed to serve another week or two until the judge rules on the legality of his firing.

Trump has begun his second term with aggressive assertions of executive power, and his attorneys sound confident the Supreme Court will likely agree with them, particularly in disputes involving federal officials.

Roberts has said the president as the chief executive has the power to remove and replace officials who “wield executive power on his behalf.”

Five years ago, Roberts spoke for a 5-4 majority and struck down a provision of the Consumer Finance Protection Bureau because Congress had said the head of the agency could not be removed by the president except for cause. A political disagreement was not sufficient, under the original law.

Roberts said the president was in charge of the executive branch, and that included controlling the heads of executive agencies.

Citing that ruling, Trump’s lawyers said the judge’s temporary restraining order to block Dellinger’s firing was clearly unconstitutional and “defies this court’s precedents.”

U.S. District Judge Amy Berman Jackson noted that Roberts cited the Office of Special Counsel in his 2020 opinion. He said then that the OSC did not have the power to issue broad national regulations like the consumer protection agency.

“The OSC exercises only limited jurisdiction to enforce certain rules governing federal government employers and employees,” he wrote.

When Jackson handed down the temporary restraining order on Feb. 12, she said she would hold a hearing on Feb. 26 and make a ruling then.

But Trump’s lawyers appealed immediately to the U.S. Court of Appeals for the District of Columbia. It issued a 2-1 decision on Saturday evening refusing to set aside the judge’s order.

Judges Michelle Childs and Florence Pan, both Biden appointees, said temporary restraining orders cannot be appealed because they are only short-term and temporary. They dismissed the administration’s appeal for “lack of jurisdiction.”

Dissenting Judge Gregory Katsas, a Trump appointee, said the president’s appeal should be granted. “The President is immune from injunctions directing the performance of his official duties,” he wrote.

On Sunday, Sarah Harris, the acting solicitor general, sent a 35-page emergency appeal to the Supreme Court.

Roberts asked for a response by Wednesday, suggesting the court plans to decide soon.