The Stage Is Set -- SCOTUS Should Now Affirm Presidential Control Over Executive Branch Officials And Policy

It will represent vindication for the late Justice Antonin Scalia, whose solo dissenting opinion in Morrison v. Olsen in 1988 laid the foundation for what may be about to happen.

That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish -- so that "a gradual concentration of the several powers in the same department," Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

Justice Antonin Scalia, alone in dissenting in Morrison v. Olsen (1988).

Here is how Justice Scalia’s “wolf” comes dressed “sheep’s clothing.”

The Special Counsel acts as an ombudsman, a clearinghouse for complaints and allegations, and after looking into them, he can encourage the parties to resolve the matter among themselves. But if that fails, he must direct them elsewhere. And along the way, while he is required to inform the President of certain findings, the statute also specifically directs him to report directly to Congress….

The Office of Special Counsel is not assigned responsibilities that include furthering the administration’s agenda; it is the Special Counsel’s job to look into and shine light on a set of specific prohibited practices so that the other bodies, in the appropriate exercise of their constitutional authority, can take whatever action they deem to be appropriate. To do this as Congress intended that he should, he must remain entirely free of partisan or political influence, and that is why the statute survives scrutiny even under the most recent precedent.

In sum, it would be antithetical to the very existence of this particular government agency and position to vindicate the President’s Article II power as it was described in Humphrey’s Executor: a constitutional license to bully officials in the executive branch into doing his will.

U.S. District Judge Amy Berman Jackson, Order Granting Summary Judgment, Dellinger v. Bessett, March 1, 2025.

Get it? The Office of Special Counsel is just an “ombudsman.” It encourages the parties to resolve disputes. It only reports his findings to other agencies, and has no power to make final decisions. It produces reports to Congress. The Office’s function does not include “furthering the administration’s agenda.” It must remain “free of partisan or political influence.” It is the bulwark against a President’s desire “to bully officials in the executive branch into doing his will.”

God forbid that the officials in the Executive Branch would be made to do the will of the Executive who has been elected to oversee their work.

Sometimes I think the judge’s don’t read what they write. What does this reflect — also from Judge Jackson:

In short, the question presented in this case is whether it is an unconstitutional intrusion on the President’s Article II powers to say that he may remove the Special Counsel for reasons related to his performance, but he cannot do it on a whim or out of personal animus.

So Pres. Trump’s decision to remove Hampton Dellinger was done based on “whim” or out of “personal animus”?? Where can that be found in the record of the case? Maybe Pres. Trump removed Dellinger because he has someone else in mind for the position who he thinks will do a better job? It is worth noting that, as a matter of the historical record, when Pres. Trump made his “initial appearance” in the matter of United States v. Trump, the federal criminal case brought by Jack Smith in the District of Columbia, Judge Jackson was among a handful of District Judges who sat in the audience section of the courtroom to watch.

I’m not going to do a “deep dive” here into the legal analysis of Judge Jackson’s decision. The decision is very fact-specific as it relates to the Office of Special Counsel. It relies upon the legislative history surrounding the creation the Office, its role in the Executive branch as envisioned by Congress, and the attributes of its specific functions as they have developed over time. Judge Jackson relied on all of those specific attributes to distinguish Dellinger from the head of the Consumer Financial Protection Bureau (CFPB) even though both are “single-heads” of an Executive branch agency. She concludes that while the Supreme Court in Seila Law v. CBPB found that the powers given by Congress to the head of the CFPB violated “separation of powers” because the head of CFPB could not be removed by the President — which the statute did not allow — the nature of the Executive power given to Dellinger has head of the Office of Special Counsel were far less significant so his removal was not required under the same reasoning. After summarizing them she wrote, “This is not significant executive authority. It is hardly executive authority at all.”

The bottom line for her analysis is that the Office of Special Counsel does a lot of good things for the benefit of federal workers, and it could not do all those good things nearly as well as it does them now if the head of the Office was subject to removal “on a whim,” for partisan political reasons, or out of “personal animus.” Most significantly, this office of the Executive branch does not exist to further the agenda of the elected Executive.

She even included a footnote where she claims her decision does not does not depend on the “continuing vitality” of Humphey’s Executor because that case involves a multi-member entity — Humphrey was one of five Commissioners on the FTC — and not an entity with a single head like the Special Counsel office. I’m not quite sure the point she is making because if a Commissioner of an “independent” mutlti-member commission like the FTC can be removed without cause — which would be the result if Humphreys’ Executor is overturned — then a single person head of an “independent office” such as the Special Counsel would not enjoy any greater protection.

But that particular question might be addressed in a second case now making its way through the legal pipeline, where the facts are closer to Humphrey’s Executor. President Trump attempted to fire the Chairperson of the Merit Systems Protection Board, Cathy Harris. Judge Contreras in the D.C. District Court followed the same reasoning as Judge Jackson in granting a TRO not long after she granted a TRO in Dellinger. The matter before Judge Contreras is Harris v. United States.

Judge Contreras did not convert the Motion for Preliminary Injunction filed by Harris into a Motion for Summary Judgment on the merits in the same fashion that Judge Jackson did in Dellinger. So his decision will ultimately turn on two key issues with respect to whether to grant injunctive relief and keep Harris in office while her case is pending — her likelihood of success on the merits, and the irreparable harm she will suffer if she is not kept in her office while her case is pending. He has already ruled on her favor on both these points — on more truncated briefing by the parties — and it is possible that he could change his mind.

But Judge Contreras’ TRO opinion issued on February 18, 2025, tracks the legal analysis of Judge Jackson’s order granting a TRO to Dellinger six days earlier on February 12. He explicitly relied on the Supreme Court’s decision in Humphrey’s Executor — with the FTC and MSPB being similar mulit-person entities — to find that the “for cause” requirement was constitutional. Judge Contreras noted that Humphrey’s represents 90 years of continuous Supreme Court precedent — making the point that I have made both here and in previous articles, that Humphreys will remain good law until the Supreme Court says otherwise.

Harris was appointed to be Chairperson of the MSPB in June 2022, and her term in that position is set to run through March 2028. There are three members of the MSPB, and no more than two can be a member of the same political party. The terms of office are seven years, and like the Special Counsel, Board Members of the MSPB are subject to removal by the President “only for inefficiency, neglect of duty, or malfeasance in office.”

On February 10, 2025, Harris was given notice that she was being terminated from her position as Chair of the MSPB, with no explanation offered as to why. Again, as was the case with Dellinger, this was done deliberately to spark this controversy and potentially creating an opportunity to challenge the “for cause” removal requirement.

Conveniently for the Supreme Court, all the briefing on Harris’ Motion for a Preliminary Injunction was completed yesterday, and the hearing on her motion is set for …. today at 2:00 pm ET. Having made a few appearances before Judge Contreras, one notable feature of his demeanor is that doesn’t ever seem to be in a hurry to do anything. So I don’t expect him to rule from the bench today, and if he intends to issue a lengthy written Order with regard to a Preliminary Injunction it could be days before such an Order is produced.

With the Harris case trailing along behind the Dellinger case by about a week, one interesting aspect of the docket in Harris is that amicus briefs have been filed on both sides of the case as part of the briefing to date. Notably, 19 States — “red” states to be precise — have filed an amicus brief in support of the Trump Administration’s firing of Harris. The States argue a variation of Justice Scalia’s dissent in Morrison — when the States joined the Union they ceded certain aspects of sovereignty in favor of a central federal government. They did so, in part, on the basis that federal power would not be centralized but would be spread among three co-equal branches of the federal government answerable to the electorate. Independent agencies such as the MSPB represent a violation of that trust, as they centralize power of all three branches in one agency where the leadership is not elected, and the statute then insulates that leadership from accountability to the electorate through the Executive with the “for cause” termination requirement. The violation of separation of powers principles cause not just injuries between the branches, but also injures the States and their citizens who are subjected to the combined authority of such independent agencies in ways not intended by the founders.

“That limitation [separation of powers] on Congress’s power indirectly preserves state sovereignty by ensuring that “independent agencies” are politically accountable should they attempt to intrude in state affairs.”

The briefing by the parties in Harris is pretty much as would be expected. The plaintiff argues for the continued vitality of Humphrey’s Executor and enthusiastically espouses all the beneficial reasons why an entity like the MSPB should be completely independent within the Executive branch so as to remain free of partisan political influence — and must be allowed to defy the Executive whenever it is just and right to do so. That independence reflects the very essence of Congress’s rationale in creating the MSPB in the first instance — as check on executive authority to utilize executive employment as a political patronage system as had been historically the case, and to protect federal employees from unjustified depredations by partisan actors that have no basis in the “merits” of their job performance.

As for the Trump Administration, the opposition is not quite a frontal attack on Humphrey’s Executor as wrongly decided. But it is also worth noting that the Response to the motion for preliminary injunction also requests that Judge Contreras enter a decision on the merits of the case — not precisely a specific request for Summary Judgment, but what appears to be an effort to cut out a step on the way to the Appeals Court and Supreme Court if the Judge Contreras is so inclined.

The Government’s Opposition begins with the 2020 Seila Law decision and the Supreme Court’s holding that all executive power is vested in a President in Article II. That was a step in the direction of undermining Humphrey’s Executor’s holding that some executive power could be conveyed by Congress to independent agencies so long as Congress felt it was really really important to do so. Mocking of top shelf legal constitutional analysis intended.

Plaintiff contends that the President did not validly remove her from office because Members of the Merit Systems Protection Board may be removed only for “inefficiency, neglect of duty, or malfeasance in office.” 5 U.S.C. § 1202(d). But MSPB Members are principal officers who lead a freestanding component within the Executive Branch and exercise executive power. Accordingly, because the entirety of the executive power is vested in the President, see Art. II, § 1, cl. 1, the President must be able to remove MSPB Members at will.

The MSPB is no “mere legislative or judicial aid,” Seila Law, 591 U.S. at 199. It is an independent agency that performs many executive functions. For instance, the MSPB “hear[s], adjudicate[s], or provide[s] for the hearing or adjudication” of matters within its jurisdiction and, subject to otherwise applicable provisions of law, take[s] final action on any such matter.”… Following those adjudications, the MSPB can order relief including reinstatement, backpay, and attorney’s fees…. And it can “order any Federal agency or employee to comply with any order or decision issued by the Board . . . and enforce compliance with any such order.”… This authority to issue final orders that affect the rights and obligations of parties is an executive function.

Further, the Board also has independent litigating authority to send its own attorneys (not Department of Justice attorneys) to litigate civil actions outside the Supreme Court in connection with any of its functions…. And under certain circumstances, the Board itself is the named respondent (and thus a litigant) in judicial proceedings seeking review of Board decisions…. These features distinguish the Board from a purely adjudicatory body.

The second and third paragraphs also constitute a justification for distinguishing Harris and the MSPB from Humphrey’s Executor, which was the way the Court dealt with the issue in Seila Law. Rather than needing to overrule Humphrey’s Executor outright, the Trump Administration argues that the function of the MSPB is sufficiently similar to the CFPB that the “for cause” termination requirement can be determined to be unconstitutional as specifically appliable to Harris and the CFPB, while leaving Humphrey’s Executor in place. This is an incremental approach referred to as “isolating Humphrey’s Executor to its facts” — meaning that decision controls the outcome of that case alone, but should not be extended to other factual scenarios even if similar in nature. It is a round-about way for the Court to suggest an earlier case was wrongly decided and won’t be followed any longer, but not taking the next step of expressly overruling the case outright.

Because Humphrey’s Executor rests on the understanding that the FTC exercised no executive power, Plaintiff’s contention that the MSPB falls within the Humphrey’s Executor exception because the MSPB “does not wield substantial executive power,” Pl.’s Mot. at 12, ECF No. 22 (emphasis added), fails. As just explained, Humphrey’s Executor approved “for-cause removal protections [for] a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power.” Seila Law, 591 U.S. at 216 (emphasis added).

This approach is likely aimed at the four conservative Justices who might be looking for a path to decide Dellinger without having to confront Humphrey’s at all.

I’ll post an update here later today after the hearing in Harris this afternoon.