Supreme Court Allows Special Counsel to Remain in Office, for now

The Supreme Court on Friday declined to vacate a district court temporary restraining order that required the Trump Administration to reinstate Special Counsel Hampton Dellinger. We most recently posted on the case here, with links to further background. In short: President Trump fired Special Counsel Dellinger; Dellinger sued, arguing that President Trump removed him without cause, in violation of his for-cause statutory removal protection; the President argued that the removal protection violated the separation of powers; the district court entered a temporary restraining order requiring the Administration to keep Dellinger in office until the court ruled on Dellinger's motion for a preliminary injunction. President Trump then asked the Supreme Court to vacate the TRO, but the Court yesterday declined.

Technically, the Court held President Trump's application in abeyance until February 26, when the district court will hear arguments on Dellinger's motion for a preliminary injunction. The move came in light of the facts that TROs aren't ordinarily appealable and the lower court's TRO is due to expire soon, on February 26.

Justice Sotomayor and Jackson would have denied President Trump's application entirely.

Justice Gorsuch dissented, joined by Justice Alito. They would have treated the TRO as an appealable preliminary injunction, vacated the order, and remanded the case.

While the Court split on whether to grant President Trump's application to vacate the district court TRO, no justice said anything about the underlying issue, whether the Special Counsel's statutory for-cause removal protection impermissibly encroaches on the President's Article II powers. In a spate of actions and defenses to litigation, the Trump Administration is taking a strong view of the "unitary executive" theory--the idea that the President enjoys plenary power over the Executive Branch, notwithstanding the fact that Congress designed, vested with authority, and funded the Executive Branch. At its core, the unitary executive theory says that Congress cannot create barriers to the President's at-will termination of officers within the Executive Branch. More aggressive versions of the theory, pushed by the Trump Administration, say that the President has plenary control over other positions within the Executive Branch, and even over the how agencies make decisions and how they're funded--again, notwithstanding the fact that Congress has the power to structure, vest with authority, and fund executive agencies, and that the President is charged with enforcing congressionally-created law.

The Supreme Court has moved in recent years in the direction of the unitary executive theory. But it has not come close to endorsing the views coming out of the Trump Administration.

By adopting more an aggressive view of the unitary executive theory--one not (yet) endorsed by the courts--the Trump Administration appears to be teeing up a case for the Supreme Court, with hopes and expectations that the Court will validate its muscular view of presidential authority. Dellinger's case is the first test case in this Trump Administration to reach the Court. The Court's ruling yesterday gives us few, if any, clues about how the Court might treat these aggressive claims in this and future cases.