The Volokh Conspiracy
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Trump Administration Appeals Special Counsel Case to SCOTUS—No, Not The Jack Smith Case.
There are two sides to the constitutional crisis coin: if the president seeks a timely appeal, courts should consider those appeals in a timely fashion.
On Thursday, I wrote about the case of Hampton Dellinger, who served as the sole director of the Office of Special Counsel. (I use the past tense quite deliberately.) This position has nothing to do with DOJ special counsels, like Jack Smith, who are appointed to investigate the executive branch. Dellinger's position concerns civil servants, whistleblowers, the Hatch Act, and other employment-related matters. Trump removed Dellinger from office.
The District Court entered an "administrative stay" ordering Trump to allow Dellinger to remain in office. The D.C. Circuit did not allow the government to appeal the administrative stay. Then the District Court entered a Temporary Restraining Order, requiring Trump to continue recognizing Dellinger as the Special Counsel. Generally, a TRO lasts for fourteen days, and is not appealable. Courts can only grant a writ of mandamus to dissolve a TRO.
A divided panel of the D.C. Circuit declined to dissolve the stay. The majority found that the opinion was not subject to immediate review. Judge Katsas dissented. He found the order should be subject to immediate review, especially where it arguably infringes on the President's removal power. Katsas points out that in past cases, removed officers sought to challenge their removal by seeking backpay. There is no recorded case where a federal court ordered the reinstatement of a removed officer. Moreover, the injunction seems to squarely run against the President, as it requires him to recognize Dellinger as the head of the department, even though Trump has appointed someone else. There is a long-running dispute under Mississippi v. Johnson about whether the federal courts have the power to enjoin the president. This case screams for urgent appellate review, but the D.C. Circuit said "Come back in two weeks."
The Trump Administration has now filed its first emergency application to the Supreme Court. Acting Solicitor General Harris lays out the stakes:
Until now, as far as we are aware, no court in American history has wielded an injunction to force the President to retain an agency head whom the President believes should not be entrusted with executive power and to prevent the President from relying on his preferred replacement. Yet the district court remarkably found no irreparable harm to the President if he is judicially barred from exercising exclusive and preclusive powers of the Presidency for at least 16 days, and perhaps for a month. See Federal Rule of Civil Procedure 65(b)(2) (authorizing courts to extend TROs so that they last up to 28 days). And, when the United States sought a stay or, alternatively, mandamus, the D.C. Circuit issued a 27-page decision denying relief late on Saturday night, over Judge Katsas's dissent. App., infra, 33a-59a. . . .
This Court should not allow lower courts to seize executive power by dictating to the President how long he must continue employing an agency head against his will. "Where a lower court allegedly impinges on the President's core Article II powers, immediate appellate review should be generally available." App., infra, at 52a (Katsas, J., dissenting). Yet the D.C. Circuit majority described "[w]aiting two weeks" to exercise the executive power vested by Article II as "not so prejudicial." Id. at 41a. If that reasoning is allowed to stand, it is hard to conceive of any TRO that would trigger appellate review. Such a ruling risks further emboldening district courts to issue TROs enjoining the President from undertaking myriad other actions implicating executive powers.
I'm sure the narrative will be that Trump is the one flouting the rule of law. But the District Court issued an "administrative stay" (of what I do not know), and then issued a non-appealable TRO, that constrains the court removal power. The D.C. Circuit twice declined to review an urgent appeal.
The "constitutional crisis" coin has two sides. On one side, the executive branch is expected to follow adverse court rulings. But on the other side of the coin, the judiciary is expected to allow the President to promptly appeal those adverse rulings. It cannot be the case that one court can strangle the executive branch for two weeks without any sort of appeal rights. Both sides have to play the game. There cannot be unilateral disarmament. And as the Acting SG points out, there is a "trend" of such rulings:
That is no mere hypothetical. The district court's order exemplifies a broader, weeks-long trend in which plaintiffs challenging President Trump's initiatives have persuaded district courts to issue TROs that intrude upon a host of the President's Article II powers. A district court in New York issued an ex parte TRO requiring that access to certain Treasury Department data be limited to "civil servants" and be de-nied to "political appointees." New York v. Trump, No. 25-cv-1144, 2025 WL 435411, at *1 (S.D.N.Y. Feb. 8, 2025). A district court in the District of Columbia issued a worldwide TRO that prohibited the government from "suspending, pausing, or other-wise preventing the obligation or disbursement" of any "federal foreign assistance award that was in existence as of January 19, 2025." AIDS Vaccine Advocacy Coali-tion v. United States Department of State, No. 25-cv-402, 2025 WL 485324, at *7 (D.D.C. 2025). Many other district courts have issued universal TROs that sweep far beyond the parties to those cases and effectively enjoin the President's Executive Or-ders even before agencies have decided how to implement them.1
None of these cases, you'll note, arose from the Fifth Circuit. As best as I can recall, district judges in Texas routinely stayed their injunctions to permit appellate review. Not so here.
Harris asks the Court to vacate the TRO, or in the alternative, grant an "administrative stay."
Let's talk turkey here. The "administrative stay" is the ballgame. If the Court denies relief here, the fourteen days will run, and the case can proceed through the usual appellate process. All too often, the Court will say that relief at this early juncture is inappropriate, but we reserve the right to step back in at some future time. I'm sure the Court will be inclined to say that here, especially since Justice Barrett has complained about administrative stays. She is loathe to consider a constitutional question until the issues are fully developed. And even when they are fully developed, she faults lawyers for not laying out comprehensive constitutional theories. It's caution all the way down.
What about the Chief Justice? In a previous lifetime, White House Attorney John Roberts would have personally walked over to Hampton Dellinger's office and changed the locks. But not now, Roberts cannot be seen as giving into to Trump's DOGEing of the federal government.
I think the Court denies the administrative stay by a 5-4 vote, with Roberts and Barrett in the majority. There will be a short statement urging the lower courts to move with promptness, but stating that relief is not appropriate at this time. Barrett will write a concurrence chastising the lower courts for issuing administrative stays of executive orders, and then declining to stay their rulings. But she will say the issues are not clearly defined enough at this point for the Supreme Court to intervene. Justice Kagan might even join Barrett to give her some backup because why not. Roberts will say nothing more because he doesn't have to. We will get a full-throated dissent from Thomas, Alito, Gorsuch urging the Court to overrule Humphrey's Executor. Justice Kavanaugh will also dissent, suggesting that the time has come to reconsider Humphrey's Executor.
My predictions are usually wrong, so take them for whatever they are worth.
