What the Supreme Court Said about Dellinger v. Trump in Seila Law v. CFPB

A district court judge has concluded that President Trump cannot remove the head of the Office of Special Counsel without cause. Supreme Court review is inevitable.

Last night, Judge Amy Berman Jackson held that President Trump's removal of Hampton Dellinger as the Special Counsel of the Office of Special Counsel was unlawful. [Note, this involves a specific office in the federal government, and not "special counsels" like Robert Mueller appointed to investigate alleged executive branch wrongdoing.]

in Dellinger v. Bessent, Judge Jackson rejected the Trump Administration's argument that the statutory provision barring the removal of the  Special Counsel without cause unconstitutionally constrains the President's authority to remove executive branch officers. She wrote:

The Court finds that the statute is not unconstitutional. And it finds that the elimination of the restrictions on plaintiff'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 Court concludes that they must stand.

The Department of Justice has already filed its notice of appeal, and eventual Supreme Court review seems assured.

With that in mind, it is interesting to note what the Supreme Court said about the Office of Special Counsel in Seila Law v CFPB. In concluding that Congress could not protect the head of the CFPB from removal without cause, Chief Justice Roberts addressed other agencies headed by single individuals, including the OSC. He wrote:

the supporters of the CFPB point to the Office of the Special Counsel (OSC), which has been headed by a single officer since 1978. But this first enduring single-leader office, created nearly 200 years after the Constitution was ratified, drew a contemporaneous constitutional objection from the Office of Legal Counsel under President Carter and a subsequent veto on constitutional grounds by President Reagan. See Memorandum Opinion for the General Counsel, Civil Service Commission, 2 Op. OLC 120, 122 (1978); Public Papers of the Presidents, Ronald Reagan, Vol. II, Oct. 26, 1988, pp. 1391–1392 (1991). [FN7: An Act similar to the one vetoed by President Reagan was eventually signed by President George H. W. Bush after extensive negotiations and compromises with Congress. See Public Papers of the Presidents, George H. W. Bush, Vol. I, Apr. 10, 1989, p. 391 (1990).] In any event, the OSC exercises only limited jurisdiction to enforce certain rules governing Federal Government employers and employees. See 5 U. S. C. §1212. It does not bind private parties at all or wield regulatory authority comparable to the CFPB.

As this passage indicates, there are potential grounds for distinguishing this case from prior decisions upholding and rejecting limitations on the President's removal authority. On the one hand, the Office of Special Counsel is within the executive branch and is headed by single individual, like the CFPB. Thus the Court could decide in favor of President Trump without overturning Humphrey's Executor (at least not in this case).

On the other hand, the Office of Special Counsel has more limited responsibilities, and the Special Counsel might even be an inferior officer. Thus the Supreme Court could potentially uphold the removal restriction by relying upon Morrison v. Olsen and United States v. Perkins, without undercutting Seila Law or foreclosing the opportunity to revisit Humphrey's Executor in a later case.

Note that Chief Justice Roberts' opinion addressed the constitutionality of limitations on removal for the head of the Federal Housing Finance Agency (FHFA), but  offered fewer grounds for distinguishing the two agencies. In short order the Supreme Court considered  the FHFA's removal limitations and held them unconstitutional in Collins v. Yellen.

As I have written here and in Civitas Outlook, the Supreme Court is almost certain to revisit Humphrey's Executor within the next year. And while this may be the first of the Trump removal cases the Supreme Court has to decide, it may not be the one that puts Humphrey's Executor in the crosshairs.