Constitutional Law
DC Circuit allows federal watchdog’s removal pending expedited appeal; US argued he had gone ‘rogue’
The U.S. Court of Appeals for the District of Columbia Circuit on Wednesday allowed the Trump administration to remove Hampton Dellinger, the leader of the Office of Special Counsel. (Photo by the U.S. Department of Justice, PD US DOJ, via Wikimedia Commons)
Updated: The U.S. Court of Appeals for the District of Columbia Circuit on Wednesday allowed the Trump administration to remove the leader of the Office of Special Counsel when it granted an emergency government request to stay a federal judge’s order pending appeal.
The appeals court stayed a March 1 preliminary injunction by U.S. District Judge Amy Berman Jackson of the District of Columbia that prevented the removal of Hampton Dellinger from the Office of Special Counsel. The appeals court ordered expedited briefing and arguments in the appeal.
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In its emergency request, the government had argued that Dellinger was advocating for fired employees and seeking stays of their terminations.
“The court should immediately stay the district court’s order and put an end to Dellinger’s rogue use of executive authority over the president’s objection,” the government brief said.
Dellinger’s office is an independent agency responsible for safeguarding whistleblowers and enforcing ethics laws, explains Erwin Chemerinsky, the dean of the University of California at Berkeley School of Law and an ABA Journal contributor, in a Feb. 26 article for the Journal. The special counsel is not the same type of special counsel who is appointed by the U.S. attorney general to handle special investigations.
According to Chemerinsky, the Dellinger 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?”
A federal law provides that the special counsel “may be removed by the president only for inefficiency, neglect of duty or malfeasance in office.” The administration contends that the law is unconstitutional because it interferes with a president’s ability to exercise executive powers under Article II.
Jackson upheld the law when she granted the preliminary injunction.
The case made a previous trip to the U.S. Supreme Court after Jackson granted a Feb. 12 temporary restraining order preventing Dellinger’s removal. The high court did not intervene at that point.
Dellinger announced Thursday that he is dropping his legal battle to stay in the job, the National Law Journal reports.
The case is Dellinger v. Bessent.
Updated March 6 at 3:30 p.m. to report that Hampton Dellinger is dropping the case.
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