Bessent v Dellinger Re: Order Issued February 21, 2025

In what could have been the Supreme Court’s first meaningful engagement with a Trump-related appeal, Bessent v. Dellinger instead offered little judicial clarity, as the justices sidestepped substantive questions by holding the government’s application in abeyance, leaving broader legal issues unresolved. Hampton Dellinger was confirmed by the Senate to serve as the Special Counsel for the Office of Special Counsel on February 27, 2024, following a nomination from then-President Joe Biden. The Office of Special Counsel’s primary function is to protect governmental whistleblowers and safeguard against political corruption. On February 7, 2025, President Trump announced that he had fired Dellinger. Trump’s removal of Dellinger follows a familiar pattern of politically charged firings of government watchdogs, often without clear cause, undermining the independence of officials tasked with oversight. Dellinger sued the administration arguing that his firing violated 5 U.S.C § 1211(b), which states that the Special Counsel shall serve a 5 year term, and can be removed by the President “only for inefficiency, neglect of duty, or malfeasance in office.” District Judge Amy Berman Jackson issued a temporary restraining order (TRO), which restrained President Trump from firing Dellinger, effectively reinstating Dellinger as Special Counsel for the duration of the TRO (14 days). The Department of Justice immediately appealed on the Supreme Court’s emergency docket.

The petitioners in Bessent asked the Court to consider both a procedural and substantive question. First, does the Court have appellate jurisdiction over TROs, which are not generally appealable, under the All Writs Act in “light of the core executive power assertedly restrained”? Second, does 5 U.S.C § 1211(b) violate the principle of separation of powers, by unduly restricting a President’s authority? The majority answered neither question. Instead, the Court held the application in abeyance until February 26, when the TRO is set to expire. But in doing so, the Court merely kicked the can down the road and will have to answer these questions on their merits when this case eventually winds up back in the Supreme Court, presumably when District Judge Jackson rules on a preliminary injunction.

The majority’s failure to reject the application on procedural grounds is concerning. It is widely understood that TROs are not appealable, primarily because they are only in effect for 14 days—by the time briefing and arguments have occurred on the appellate TRO, the TRO would no longer be in effect. But the Trump administration is asking the Court for an exception, presumably because TROs impinge on the President’s ability to take bold and decisive action. But this could be a dangerous argument for the Court to accept. As of February 25, 2025, there are 92 pending lawsuits against the Trump administration and some of its facially lawless orders. If the Court grants the Trump administration free reign to appeal every TRO, it risks stripping District Courts of their authority to uphold the rule of law, reducing their orders to mere temporary suggestions endlessly challenged on appeal.

Justices Sotomayor and Jackson would have denied the application for TRO vacatur. Justices Gorsuch and Alito dissented from holding the application in abeyance, citing that the TRO acts as a preliminary injunction due to the special nature of the President’s executive power.

Through its substantive second question, this case has also teed up the Court to overturn Humphrey’s Executor, a 1935 case that upheld the constitutionality of “for cause” removal provisions. Conservative justices have long been chipping away at Humphrey’s Executor, such as in Seila Law LLC v. Consumer Financial Protection Bureau (2020) ruling that Humphrey’s Executor could not extend to “an independent agency led by a single Director and vested with significant executive power.” If the Roberts Court’s treatment of precedent cases like Roe (1973) and Chevron (1984) is any indication, Humphrey’s Executor could soon meet its end.

On March 1st, District Judge Amy Berman Jackson ruled in favor of Hampton Dellinger and awarded injunctive relief preventing the Trump administration from firing Dellinger on the basis of 5 U.S.C § 1211(b). There is no dispute regarding the statutory interpretation of 5 U.S.C § 1211(b), but the Trump administration instead challenged its constitutionality. The question presented was “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.” Unsurprisingly, the Trump administration argued that “the President of the United States must have control over the head of this small federal agency” and therefore “the President should have unfettered authority to fire him for no reason at all.” In a sixty-seven page decision, Judge Jackson methodically found that the statute is not unconstitutional and that “the elimination of the restrictions on [Dellinger’s] removal would be fatal to the defining and essential feature of the Office of Special Counsel as it was conceived by Congress and signed into law by the President: its independence.”

The Trump administration’s appeal of this District Court order is inevitable. The real question lies in how they choose to proceed. Will they follow the conventional path to the United States Court of Appeals, or will they bypass it entirely, seeking immediate intervention from the Supreme Court and Chief Justice Roberts? Equally revealing will be the speed with which the Supreme Court grants certiorari and schedules arguments. These procedural choices will serve as an early litmus test for how the Court will engage with the Second Trump administration.

On March 5, 2025, the United States Court of Appeals for the District of Columbia released a short, unsigned order to stay the District Court’s preliminary injunction. The order “gives effect to the removal of [Dellinger] from his position as Special Counsel of the U.S. Office of Special Counsel.” Briefing has been set for the expedited date of April 11, 2025 with oral arguments to follow. Dellinger is likely to appeal this stay to the Supreme Court on the emergency docket.

One day after the Court of Appeals issued a stay in the proceedings, Hampton Dellinger announced on March 6, 2025 that he would be dropping the case, citing that his odds of prevailing at the Supreme Court “are long”. As a result, the Court will have no opportunity to review the constitutionality of 5 U.S.C § 1211(b). Some may welcome Dellinger’s decision, as it prevents the Court from overturning Humphrey’s Executor and radically reshaping presidential authority. However, the Trump administration may interpret the Court of Appeals’ decision and Dellinger’s withdrawal as a green light to carry out more unlawful firings without fear of judicial intervention.