Trump Tests His Sway at Supreme Court in Push to Oust Official

Donald Trump is already testing his sweeping assertion of presidential power with the US Supreme Court, which just a month into his new term is poised to say whether he can fire the head of a federal whistleblower agency.

Asking the justices to take the unusual step of intervening in a just-filed lawsuit, Trump says the court should lift a temporary restraining order that shields Hampton Dellinger for 14 days from being ousted from his position at the US Office of Special Counsel. The court could rule on the request as soon as Wednesday.

The clash will offer an early clue about the court’s receptiveness to Trump’s broad definition of White House authority in his new term as he tries to remake the government. It comes amid a broader Trump effort to seize control of independent federal agencies.

In a brief filed Sunday, the administration called on the court to send a message to judges around the country as they manage at least a dozen requests to pause Trump initiatives involving the federal workforce, government spending, citizenship rights and Elon Musk’s “government efficiency” team.

“This court should not allow the judiciary to govern by temporary restraining order and supplant the political accountability the Constitution ordains,” acting Solicitor General Sarah Harris told the court.

The request, likely to be the first of many Trump-related emergency applications in the coming months, asks the court to carve out an exception to the usual rule that temporary restraining orders can’t be appealed. TROs, as they are known, are designed to be interim orders that maintain the current state of affairs until a judge can give a case fuller consideration.

Dellinger told the court Tuesday that granting the administration request would “open the floodgates to many more fire-drill TRO appeals.”

Dellinger was nominated by then-President Joe Biden and confirmed by the Senate for a five-year term that started in March 2024. Federal law says the special counsel can be removed only for “inefficiency, neglect of duty, or malfeasance.”

The special counsel’s office is designed to provide support for whistleblowers and isn’t related to the prosecutions of Trump during Biden’s presidency by a lawyer with a similar title.

Firing Officials

The case in many ways is an ideal one for the Trump administration as it looks to score an early victory at the Supreme Court. The court in recent cases has said the president has broad constitutional power to fire executive branch officials. In perhaps the biggest ruling, the court in 2020 invalidated the job protections Congress had bestowed on the director of the Consumer Financial Protection Bureau.

That history makes it highly likely the court would strike down the special counsel’s job protections were it to consider them directly, says Jonathan Adler, an administrative law professor at Case Western Reserve University School of Law. The court has become even more conservative since 2020, adding a sixth Republican-appointed justice.

“The court is likely to think this case is not particularly close on the merits,” Adler said. The court might see the special counsel and CFPB disputes as so similar that the “normal presumption against intervening might be overcome,” he said.

Even so, granting the request could force trial judges to rethink how they approach similar cases, says Jeremy Fogel, a former federal judge who now leads the Berkeley Judicial Institute at the University of California, Berkeley School of Law. He said the administration’s position amounts to saying judges can’t maintain the current state of affairs while getting up to speed on the details of a case.

“They’re saying even taking the time to do that while maintaining the status quo is causing irreparable harm to the president’s prerogatives,” Fogel said. A decision accepting that would be a “sea change.”

The Dellinger case may already be casting a shadow. On Tuesday, US District Judge Tanya Chutkan refused to issue a TRO blocking Musk’s team from accessing internal systems and firing employees at multiple agencies – even though she said Democrat state attorneys general had made serious arguments that Musk’s appointment was unconstitutional.

The states “legitimately call into question what appears to be the unchecked authority of an unelected individual and an entity that was not created by Congress and over which it has no oversight,” Chutkan wrote.

But she said the states hadn’t shown they would suffer “imminent, irreparable harm” as a result of Musk’s work. “Even a strong merits argument cannot secure a temporary restraining order at this juncture,” she said.

--With assistance from Zoe Tillman and Christopher Cannon.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Sara Forden

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