WASHINGTON – In its first ruling on President Donald Trump’s second-term agenda, the Supreme Court on Friday temporarily kept the head of the federal agency that protects government whistleblowers in his position.
The justices said in an unsigned order that Hampton Dellinger, the head of the Office of Special Counsel, could keep his job at least until Wednesday. That is when a lower court order temporarily protecting him expires.
With a bare majority of five justices, the Supreme Court neither granted nor denied the administration’s request to remove him immediately. Instead, the court held the request in abeyance, noting that the order would expire in a few days.
U.S. District Judge Amy Berman Jackson has scheduled a hearing on Wednesday to determine whether to extend her order to keep Dellinger in his position. The justices may return to the case depending on what she decides.
Conservative justices Neil Gorsuch and Samuel Alito agreed with the administration, questioning whether courts have the authority to reinstate someone the president has fired.
Gorsuch acknowledged that some presidentially appointed officials have challenged their removal, but stated that “those officials have generally sought remedies like backpay, not injunctive relief like reinstatement.”
Liberal justices Sonia Sotomayor and Ketanji Brown Jackson would have denied the administration’s request.
The conservative-dominated court has previously taken a strong view of presidential power, including a decision last year that granted presidents immunity from prosecution for actions taken while in office.
The Justice Department used broad language in urging the court to allow the dismissal of the head of an obscure federal agency with limited authority.
Acting Solicitor General Sarah Harris wrote in court papers that the lower court had crossed “a constitutional red line” by blocking Dellinger’s firing and preventing Trump “from shaping the agenda of an executive-branch agency in the new administration’s critical first days.”
The Office of Special Counsel is in charge of protecting the federal workforce from illegal personnel actions, such as retaliation for whistleblowing. He or she “may be removed by the president only for inefficiency, neglect of duty or malfeasance in office.”
Dellinger was appointed by Democratic President Joe Biden and confirmed by the Senate for a five-year term in 2024.
“I am glad to be able to continue my work as an independent government watchdog and whistleblower advocate,” Dellinger said in a statement. “I am grateful to the judges and justices who have concluded that I should be allowed to remain on the job while the courts decide whether my office can retain a measure of independence from direct partisan and political control.”
Harris stated that the court should use this case to set a precedent and check federal judges who “in the last few weeks alone have halted dozens of presidential actions (or even perceived actions)” that encroached on Trump’s presidential authority.
The court has already limited a 1935 decision known as Humphrey’s Executor, which protected presidentially appointed and Senate-confirmed leaders of independent agencies from arbitrary dismissal.
Conservative justices have questioned the president’s ability to remove agency heads. In 2020, for example, the court ruled 5-4 to uphold Trump’s first-term firing of the Consumer Financial Protection Bureau director.
Chief Justice John Roberts stated for the court that “the President’s removal power is the rule, not the exception.” However, in that same opinion, Roberts made distinctions that suggested the court could take a different approach to efforts to remove the whistleblower watchdog.
“In any case, the OSC has only limited authority to enforce specific rules governing Federal Government employers and employees. It does not bind private parties or exercise regulatory authority comparable to the CFPB,” Roberts wrote.
The new administration has already stated that it intends to overturn the Humphrey’s Executor decision, which held that President Franklin D. Roosevelt could not fire a member of the Federal Trade Commission at will.
Trump has targeted individuals who serve on the multimember boards that oversee an alphabet soup of federal agencies, including the National Labor Relations Board and the Merit System Review Board.
Like Dellinger, they were confirmed to specific terms in office, and the federal laws that govern the agencies protect them from arbitrary dismissal. Some of these firings have already been blocked by lower courts.