Dellinger v. Bessent Disappears Allowing Wilcox v. Trump to Train Sights on Humphrey's Executor

The Supreme Court will not have to weigh in on removal limitations at the Office of Special Counsel, but it could still have to consider those for the National Labor Relations Board.

Fewer than twenty-four hours after the U.S. Court of Appeals for the D.C. Circuit granted the Trump Administrations request for a stay in Dellinger v. Bessent, Special Counsel Hampton Dellinger has dropped his suit challenging President Trump's removal of him from his office. But this is hardly the end of lawsuits seeking to clarify the scope of the President's removal power. Indeed, as Dellinger disappears, a clear challenge to Humphrey's Executor is coming into focus.

Earlier today, Judge Beryl Howell ruled against the Trump Administration in Wilcox v. Trump, holding that the President cannot remove Gwynne Wilcox from her position as Chair of the National Labor Relations Board without cause. Relying squarely on Humphrey's Executor, Judge Howell concluded that the removal limitations contained in the National Labor Relations Act are constitutional and that she must be reinstated. An appeal is sure to follow.

Swapping Dellinger for Wilcox paints a clearer target on the Humphrey's Executor precedent. In Dellinger, the Supreme Court could have ruled for or against the president without directly challenging Humphrey's. The Court could have sustained the removal on the grounds that the OSC, like the CFPB, is a single-headed agency within the executive branch. Alternatively it could have ruled against Trump on the grounds that the Special Counsel is an inferior officer under cases such as Morrison v. Olson and United States v. Perkins.

Unlike Dellinger, Wilcox places the focus directly on Humphrey's Executor. This is because it is difficult to distinguish the NLRB from the Federal Trade Commission. Both are multi-member agencies with the authority to promulgate regulations and adjudicate. While there is an argument that neither is much like the circa-1935 FTC the Court considered in Humphrey's, it is hard to see how the Court could sustain removal of Wilcox without implicating other purportedly independent regulatory agencies, and this would take Humphrey's along with it unelss the Court were to try and limit that case to its facts.