U.S. Supreme Court
The first case involving the second Trump administration has come to the U.S. Supreme Court.
Although the court has not gotten involved at this stage in the litigation, the case involves an issue of enormous significance: May a president fire anyone who works in the executive branch of government even when there is a statute limiting firing? More generally, will the court continue to allow the existence of “independent regulatory agencies” with some degree of independence from a president?
The facts of this case
The case, Bessent v. Dellinger, involves Hampton Dellinger, who is the head of the Office of Special Counsel. This is an independent agency responsible for safeguarding whistleblowers and enforcing ethics laws. Dellinger was appointed by President Joe Biden in 2024 to a five-year term and confirmed by the Senate under a law that says that the Special Counsel “may be removed by the president only for inefficiency, neglect of duty or malfeasance in office.”
On Feb. 7, Dellinger was fired in a one sentence email that gave no reasons. In none of its filings in court, has the government tried to claim that there was cause for removing him.
The U.S. District Court for the District of Columbia, following Supreme Court precedent, issued a temporary restraining order against the removal. On Feb. 15, the U.S. Court of Appeals for the District of Columbia Circuit, in a 2-1 decision, denied a request to stay the temporary restraining order. The majority explained that TROs are generally not reviewable on appeal. If the district court, on the expiration of the TRO, issues a preliminary injunction, that would be subject to appeal.
The next day, the Trump administration asked the Supreme Court to lift the TRO. On Feb. 21, the Supreme Court, in a short order, declined to hear the matter at this point, with Justices Samuel Alito and Neil Gorsuch dissenting.
Independent regulatory agencies and the removal power
Independent regulatory agencies have a long history. In 1887, Congress created the Interstate Commerce Commission to regulate railroad rates. Over time, a myriad of important agencies were created, such as the Federal Trade Commission, the Federal Communications Commission, the Securities and Exchange Commission, the National Labor Relations Board and many more.
As with cabinet officers, commissioners for these agencies are nominated by the president with a requirement of Senate confirmation. But unlike cabinet positions, members of the agencies have protection from removal. The statutes creating the agencies provide that the commissioners serve for a set term and can be removed only for cause, usually defined as permitting firing by the president “only for inefficiency, neglect of duty, or malfeasance in office.”
In 1935, in Humphrey’s Executor v. United States, the Supreme Court unanimously upheld a federal statute that prevented removal of commissioners of the Federal Trade Commission unless there was just cause for firing. The court stressed the importance of Congress being able to shield federal regulatory agencies from direct presidential control. The court declared: “The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime.”
In Wiener v. United States, in 1958, the high court went further and held that even without a statutory limit on removal, the president could not remove executive officials where independence from the president is desirable. Wiener involved the president’s firing a member of the War Claims Commission. Unlike the Federal Trade Commission Act in Humphrey’s Executor, the statute creating the War Claims Commission did not expressly limit the president’s removal power.
However, the court concluded that the functional need for independence of the War Claims Commission limited the president’s removal power. The court explained that Congress’ intent was for the War Claims Commission to award claims based on merit rather than on political influence. The court said that there was a “sharp differentiation” between “those who are part of the executive establishment and those whose tasks require absolute freedom from executive interference.”
In subsequent cases, the Supreme Court reaffirmed that Congress can provide protection from removal where independence from the president is desirable. In Morrison v. Olson, in 1988, the court upheld the constitutionality of a federal law which created an independent counsel to investigate wrongdoing by high level executive branch officials and allowed firing only for cause. In a 7-1 decision, the court, in an opinion by Chief Justice William Rehnquist, upheld this limit and stressed that the independent counsel, who exists to investigate and prosecute alleged wrongdoing by those in the executive branch of government, ideally should be independent of the president.
In 2020, the Supreme Court clarified these principles and even spoke of the office held by Dellinger. In Seila Law v. Consumer Financial Protection Bureau, the court, 5-4, held that Congress could not limit the removal of the head of the Consumer Financial Protection Bureau. The court distinguished Humphrey’s Executor. It said that the Congress cannot limit removal where an agency is directed by a single person, as was the case for the CFPB. But the court reaffirmed that Congress can limit removal where it is a multi-member commission as with the Federal Trade Commission in Humphrey’s Executor.
Chief Justice John Roberts, writing for the majority, contrasted the Office of Special Counsel, which Dellinger heads, to the CFPB and said: “In any event, the Office of Special Counsel exercises only limited jurisdiction to enforce certain rules governing federal government employers and employees. It does not bind private parties at all or wield regulatory authority comparable to the CFPB.”
The Trump administration position and the opposition
The Trump administration is arguing that cases such as Humphrey’s Executor and Morrison v. Olson should be overruled and that Congress never can limit the firing of anyone who works in the executive branch of government. In a letter, dated Feb. 12, Acting Solicitor General Sarah M. Harris wrote to Sen. Richard Durbin, ranking Democrat on the Senate Judiciary Committee, that the Department of Justice has concluded that limits on removal are unconstitutional, that Humphrey’s Executor is wrong, and that it will not abide by statutes limiting firing.
On Feb. 18, the Trump administration issued an executive order, Ensuring Accountability for All Agencies, which declared that all federal agencies are under control of the president. It said that the president can fire those within the agency without needing to comply with statutory limits on removal and that all within the agencies must adhere to the president’s policies.
President Trump has fired many individuals who have statutory protection from removal such as Dellinger, a commissioner on the National Labor Relations Board, members of the Equal Employment Opportunity Commission, and the head of the Federal Election Commission.
The Trump administration relies on what is referred to as the unitary executive theory. This is the view that the Constitution vests the entire executive power in the president who then is in charge of the entire executive branch of government. Any limit on presidential control, such as restrictions on removal, are unconstitutional.
Critics argue that the unitary executive theory has no historical support. The framers of the Constitution were deeply distrustful of executive authority. Those who oppose the unitary executive theory say that it ignores that federal powers are both separate and interdependent and the importance of checks and balances within the federal government.
In addition, critics argue, there are times when it is very desirable to have protection for those who are formally in the executive branch of government. For example, it is widely thought that the Federal Reserve Board, which has enormous influence over the economy, should not be directly answerable to the president. And it makes sense that the person who is handling whistleblower complaints against the government should have protection from removal.
The Supreme Court
Although the Supreme Court did not hear the Trump administration’s appeal in the Dellinger case at this time because of its procedural posture, the issue surely will come back to the court, in this or another case, soon. The court will then have to decide whether to overrule long-standing precedents and give the president powers that could extend to the ability to fire all government officials and employees.
On the one hand, there now may be a majority on the court disposed toward accepting the unitary executive theory. In Trump v. United States, the court, in a majority opinion by Chief Justice Roberts, stated “The President occupies a unique position in the constitutional scheme as the only person who alone composes a branch of government.” The court may well say that the distinction between single-member and multi-member heads of agencies that it drew in Seila Law is arbitrary.
On the other hand, for 90 years, the law has been that there can be independent agencies and there can be limits on presidential removal. It would be a dramatic expansion of presidential power for the court to embrace the unitary executive theory.
Perhaps the court will take an intermediate position, giving the president authority to remove the heads of agencies, but not finding civil service protection for federal employees unconstitutional.
The only sure thing is that one of the first tests of the Trump administration’s expansive assertion of executive power will involve whether Congress can impose limits on the president’s removal power. If the court embraces the unitary executive theory, the implications will be enormous.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including No Democracy Lasts Forever: How the Constitution Threatens the United States and A Court Divided: October Term 2023 (2024).
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
