What the Supreme Court Said about Dellinger v. Bessent 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.

Comments

[Lee Moore]

If the Special Counsel is an inferior officer, who is the principal officer to whom he reports ?

[Kazinski]

Nobody, since he can't be removed except by impeachment.

Must be his own branch.

[JoeFromtheBronx]

He may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.

[JoeFromtheBronx]

The district judge noted:

While the Special Counsel may “conduct an investigation” to determine whether there are reasonable grounds to believe a
prohibited personnel practice has occurred, id. § 1214(a)(5), he may not demand corrective action, he must “petition" the Merit Systems Protection Board and ask it to order it.

Also:

And if the Special Counsel is recommending disciplinary action against “an employee in a confidential, policy-making, policy-determining, or policy-advocating position appointed by the President, by and with the advice of the Senate,” the complaint must be presented to the President for appropriate action, not the MSPB. 5 U.S.C. § 1215(b).

In both cases, the special counsel "does not have the last word."

Furthermore:

When it comes to whistleblower protections, while one may generally characterize the OSC’s role as “enforcing” the rules against reprisals, the statute directs that the office shall “receive, review, and where appropriate, forward to the Attorney General or an agency head” disclosures of violations of criminal conduct, the gross waste of funds, abuse of authority, or danger
to public health or safety.

The officer is a "conduit," not the final word. Overall, it is an inferior office. At least, that seems to be where the opinion is going. Nonetheless, it takes a more limited path:

though this Court does not consider plaintiff to be an inferior officer, the case is more akin to Morrison, in which the Court found that the removal protections did not unduly interfere with the functioning of the executive branch because, in part, the independent counsel had “limited jurisdiction and tenure and lacked policymaking or significant administrative authority.”

What will the Court actually do? We shall see how YOLO it will be. They already went further than the Constitution rightly applied warranted. (see Kagan's dissent in Seila Law). So, that won't be a limit.

[Lee Moore]

In both cases, the special counsel "does not have the last word."

Likewise the FBI. They do their investigating and then hand it over to the DA for prosecution.

The FBI is not part of the executive branch ?

[Michael Ejercito]

They can conduct arrests.

[Lee Moore]

So can you.

[MollyGodiva]

The OSC works to prevent protected personnel practices, like retaliating against whistle-blowing and those who point out waste, fraud and abuse. If the president could fire the head of the OSC at will then that would undermine the entire point of the OSC and allow the executive branch to silence those very people who the US is dependent upon for reporting abuses. Article II is not a green light to any and all presidential abuses of power.

[Roger S]

You are making an argument for a fourth branch of government.

[MollyGodiva]

Nope, just an argument that Congress can put limits on the President's authority.

[A Japanese Student]

As I noted somewhere else, unitary executive theory was discussed since the 1950s in Japan. One of the main targets was the National Personnel Authority, OPM-like commission with for-cause removal restriction. (Despite being discussed by jurists for decades, few judicial opinions mention this theory.)

In support of its independence, some have argued that the Constitution only vests executive power - the ability to enforce laws - in the executive branch. NPA, on the other hand, exercised administrative power only. (This still doesn't explain why FTC or National Public Safety Commission can be independent, however.)

In that sense, OSC, like NPA, is an agency exercising exclusively administrative powers. It does not rely on the Government's police power.

[Lee Moore]

What’s the difference between executive power and administrative power ? Is administrative some kind of legislative or judicial power ? Or what ?

In the US system any kind of federal power has to be legislative, executive or judicial. No other powers are granted in the constitution.

[A Japanese Student]

Sorry, I think I mixed up two theories - the executive/administrative one, and the police power/internal discipline distinction.

The executive power (under the former theory) is the power to make political judgments, while the administrative power is strictly apolitical. Not a good theory indeed.

The other theory (the one I was thinking about) is that the executive power can be divided into internal and external ones. The internal executive power (power to govern itself) is inherent to all branches of the Government, and is not part of the unitary executive. Presidents do not control the employment of legislative or judicial employees, despite personnel management not being legislative or judicial in nature. This is the "internal executive" part.

(Internal judicial or legislative power could exist, as well. Article 1, Section 5, Clause 1 and Rules Enabling Act are good examples.)

[Lee Moore]

Understood. I don't think the "unitary executive" theory claims that the President has power over the internal adminitration of the legislative or judicial branches. Just the executive branch.

[Michael Ejercito]

So what powers does the Office of Special Counsel have?

[David Nieporent]

Hmm. Is there some court opinion one could read that might describe those powers? If there is, where could a link to said opinion possibly be found?