Update: Government Takes Special Counsel Case to Supreme Court

The Trump Administration asked the Supreme Court to intervene in the case of Special Counsel Hampton Dellinger and to vacate the district court's temporary restraining order and to stay the district court's order. The move came immediately on the heels of a D.C. Circuit ruling that denied the Administration's efforts to reverse or stay the district court order. Look here for background.

This case seems destined for the Supreme Court. The only question is whether the Court will take up the Administration's core constitutional claims now, or later, after the lower courts first pass on them.

The government's brief draws on recent Supreme Court rulings that struck for-cause removal protections for single heads of the Consumer Financial Protection Bureau (Seila Law LLC v. CFPB (2020)) and the Federal Housing Finance Agency (Collins v. Yellen (2021)), and the Office of Special Counsel's determination that the for-cause removal protection for the head of the Social Security Administration was unconstitutional. The framing means that the Court (if it takes up the case) will assess whether the Special Counsel and OSC wields the same kind of executive authority that those offices and agencies wield--whether the Special Counsel is like those offices for this purpose.

The government's brief also quotes Trump v. United States, the presidential immunity ruling from last summer:

As this Court observed just last Term, "Congress cannot act on, and courts cannot examine, the President's actions on subjects within his 'conclusive and preclusive' constitutional authority"--including "the President's 'unrestricted power of removal' with respect to 'executive officers of the United States whom [the President] has appointed.

The Court has been moving step-by-step and inexorably toward a unitary-executive theory of the President's power to remove officers in the Executive Branch over the last several years. This case could be the next step toward an even more robust unitary executive theory. Several or many other similar cases are in the pipeline, and will give the Court yet more opportunities to move in this direction.