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.

Comments

[Lee Moore]

This is, as I mentioned elsewhere, precisely why Dellinger is making a tactical error in withdrawing from the field of battle.

If SCOTUS were to decide Dellinger and Wilcox at the same time, Roberts could happily divide the baby, giving the loss to Dellinger and the win to Wilcox. One each is fair. Now it's Wilcox, batting for the multi-member agencies, all on her lonesome. She could have had the win in the bank, but now it's up in the air.

That's five metaphors all in a row, which is enough for one short comment.

[Causter]

Don't worry, Roberts will get his chance. Setting him up to split the baby with Wilcox is what Harris v Bessent is for.

[Bored Lawyer]

Mixing metaphors is a federal crime. Right along with mailing dentures without a license.

[Lee Moore]

True and it was obviously the fear of having committed it that caused me to reread my comment and count the metaphors. But in fact I’m not guilty. The metaphors are rich and plentiful but not mixed. The first three are applied to different people and the last two though they refer to the same thing are both metaphors of location, and are thus in sympathy.

I’d be acquitted. (Except in DC.)

[Mark Regan]

Shouldn't your headline say "Sights," not "Sites"? (Although "training sites" is indeed a concept.)

[Kazinski]

Only if he means training AI websites.

Either Adler isn't a gun guy, or his AI spellchecker "helped" him.

[Causter]

> unless the Court were to try and limit that case to its facts

Associate Justice Roberts would like to know your location.

[Kazinski]

I think it is likely that is likely the course Roberts will take: the facts in Humphrey's Executor is limited to only the question of back wages to deceased members of the FTC that have been removed when still breathing.

[tylertusta]

I think he's feeling like he's under considerable pressure to give Democrats a win, and this is as good of place as any.

[Kazinski]

No, I think you are completely wrong there.

Roberts may occasionally twist himself into pretzels to sustain the government.

But he won't twist himself into pretzels to make himself look a fool.

This is what he himself wrote in Seila:
"Under our Constitution, the “executive Power”—all of it—is “vested in a President,” who must “take Care that the Laws be faithfully executed.” Art. II, §1, cl. 1; id., §3. Because no single person could fulfill that responsibility alone, the Framers expected that the President would rely on subordinate officers for could fulfill that responsibility alone, the Framers expected that the President would rely on subordinate officers for assistance. Ten years ago, in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477 (2010), we reiterated that, “as a general matter,” the Constitution gives the President “the authority to remove those who assist him in carrying out his duties,” id., at 513–514. “Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.” Id., at 514."

He doesn't want to read those words in a dissent.

Even besides that rather superficial rational, this is the same Roberts that wrote (according to some accounts) the President could order Seal team 6 to kill whomever he pleased.

He's not going to quail at the mere firing of an Officer Under the United States.

[Lee Moore]

My recollection is that he had no difficulty in forgetting his scathing dissent in the Arizone Redistricting Commission case (when is a "Legislature" something other than the actual legslature) - when it came to deciding whether the Governor and State Supreme Court formed part of the "Legislature" in more recent redistricting squabbles.

[Aladdin's Carpet]

Couldn’t it be argued the president had a right to control a given agency, therefore removing the chair is fair game but removing say, a minority member of the other party is not?

[MollyGodiva]

No it is not fair to say that. The President must run the agency as it is written in federal law.

[Lee Moore]

With white people only at its head.

[JoeFromtheBronx]

It's unfortunate that he dropped his lawsuit though might be prudentially useful if he was right that success was doubtful.

Anne Joseph O’Connell, a professor with administrative law chops, on Bluesky noted:

That’s too bad. I actually think he has the better argument, even with this Court. Lots of other cases have worse odds (e.g., IG removal notice, probationary firings done by agency not OPM).

YMMV. Ultimately, we are left with the current Court, which has gone a non-originalist, wrongminded route on executive removal power & is likely to go further if given the chance.

The ultimate question is how far. Meanwhile, on a past subject:

https://www.dorfonlaw.org/2025/03/of-health-care-birthright-citizenship.html

[MollyGodiva]

Trump wants to destroy agencies by firing as many people as he can. Those who are left he wants them to be loyal to him. Neither of those is allowed under federal law the the Constitution. "The executive Power shall be vested in a President" is not a magic loop hole for dictatorship.

Also, this is what fascists do:
https://www.reuters.com/legal/trump-suspending-law-firm-perkins-coies-security-clearances-2025-03-06/

[edbeau99]

SCOTUS will probably decide that Trump doesn't have standing.

[Kazinski]

You should have a /ridiculous tag after that.

Standing is only for the plaintiff.

[Lee Moore]

Three hundred Obama and Biden appointed judges just yelled in unison :

"Hold my beer !"

[F.D. Wolf]

Whether some NLRB member keeps her job or not is, in the grand scheme of things, rather inconsequential. But anyone paying attention has known for years that Trump and others interested in dismantling the permanent entrenched bureaucracy have been trying to get a test case to overturn Humphrey's Executor, and now it appears there is one.

Humphrey's Executor was an atrocious ruling. It is the lynchpin of the Deep State, the permanent unaccountable bureaucracy that operates as a fourth branch of government. If it can be overturned, it will start to right the ship of government, shifting power away from the bureaucracy and back towards the people's elected representatives. The overturning of Chevron with Loper Bright was the start. This could be the finish. (Note Chevron and Humphrey's Executor's have a lot of the same fan base).

I think there are four votes to overturn it and three votes to preserve it, and it will come down to Roberts and Barrett. If they overturn Humphrey's Executor, it will be the Court's most consequential decision in decades. But, then again, Chief Feckless might try to craft some nonsensical "compromise". I guess we'll see. Regardless, I thank Ms. Wilcox for trying to keep her temporary government job, without which this historic opportunity might not have presented itself.

[David Nieporent]

1) They haven't been trying very hard, since any president could have illegally fired one of these officials at any time to set up such a test case.

2) Humphrey's Executor is not any sort of lynchpin of any imagined Deep State. The president not being able to fire some people without cause is a minor constraint, and does not create any sort of unaccountable bureaucracy. The "people's elected representatives — i.e., Congress — could take charge any time they wanted. Overturning it would have had, and will have, no meaningful effect on any president other than the crazed authoritarian currently in the White House.

Note Chevron and Humphrey's Executor's have a lot of the same fan base

That doesn't make any sense at all. Chevron was about the distribution of power between the executive and the judiciary. Chevron gives (gave) more power to the executive. Humphrey's Executor was about the distribution of power in the executive branch; it took power away from the executive.

[F.D. Wolf]

Yes, he should have tried harder. He's been in office for like six weeks already.

What Chevron and Humphrey's Executor have in common, and what many find so objectionable about them, is that they twist and pervert the separation of powers. Getting rid of them will help restore the proper constitutional order. As the Massachusetts Constitution of 1780 so eloquently put it:

In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws, and not of men.

[David Nieporent]

He's been in office for like six weeks already

I believe you mean 214 weeks.

[Riva]

Not sure about limiting a case to its facts. They did that in Wong Kim Ark. They couldn’t have been more clear that they limited that case to its facts than if they had screamed it from the bench, put up a 50 foot billboard, and bought ads in every media outlet in the country. That didn’t stop those determined to interpret the holding expansively to suit their own political agendas, and some of those are judges.