WASHINGTON (AP) — The Supreme Court on Friday temporarily kept on the job the head of the federal agency that protects government whistleblowers, in its first word on the many legal fights over President Donald Trump’s second-term agenda.
The justices said in an unsigned order that Hampton Dellinger, head of the Office of Special Counsel, could remain in his job at least until Feb. 26. That’s when a lower-court order temporarily protecting him expires.
The high court neither granted nor rejected the administration’s plea to immediately remove him. Instead, the court held the request in abeyance, noting that the order expires in just a few days.
Conservative justices Neil Gorsuch and Samuel Alito sided with the administration. Liberal justices Sonia Sotomayor and Ketanji Brown Jackson would have rejected the administration’s request.
The conservative-dominated court has previously taken a robust view of presidential power, including in last year’s decision that gave presidents immunity from prosecution for actions they take in office.
The Justice Department employed sweeping language in urging the court to allow the termination of the head of an obscure federal agency with limited power. Acting Solicitor General Sarah Harris wrote in court papers that the lower court had crossed “a constitutional red line” by blocking Dellinger’s firing and stopping Trump “from shaping the agenda of an executive-branch agency in the new administration’s critical first days.”
The Office of Special Counsel is responsible for guarding the federal workforce from illegal personnel actions, such as retaliation for whistleblowing. Its leader “may be removed by the president only for inefficiency, neglect of duty or malfeasance in office.”
Dellinger was appointed by Democratic President Joe Biden and confirmed by the Senate to a five-year term in 2024.
Harris said the court should use this case to lay down a marker and check federal judges who “in the last few weeks alone have halted dozens of presidential actions (or even perceived actions)” that encroached on Trump’s presidential powers.
The court already has pared back a 1935 ruling, known as Humphrey’s Executor, that protected presidentially appointed and Senate-confirmed leaders of independent agencies from arbitrary firings.
Conservative justices have called into question limits on the president’s ability to remove the agency heads. In 2020, for instance, the court by a 5-4 vote upheld Trump’s first-term firing of the head of the Consumer Financial Protection Bureau.
Chief Justice John Roberts wrote for the court that “the President’s removal power is the rule, not the exception.” But in that same opinion, Roberts drew distinctions that suggested the court could take a different view of efforts to remove the whistleblower watchdog. “In any event, the OSC 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,” Roberts wrote.
The new administration already has indicated it would seek to entirely overturn the Humphrey’s Executor decision, which held that President Franklin D. Roosevelt could not arbitrarily fire a Federal Trade Commission member. Trump has taken aim at people who are on the multimember boards that run an alphabet soup of federal agencies, including the National Labor Relations Board and the Merit System Review Board.
Like Dellinger, they were confirmed to specific terms in office and the federal laws under which the agencies operate protect them from arbitrary firings. Lower courts have so far blocked some of those firings.
