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Less than a day after being shot down by a federal appeals court, President Donald Trump‘s Justice Department asked the U.S. Supreme Court on Sunday to sign off on his repeated attempts to boot Biden ethics enforcer Hampton Dellinger from his post at the Office of Special Counsel, arguing that judicial rulings handed down against his termination in recent weeks “irreparably harm the presidency” by curtailing Trump’s ability to “manage the Executive Branch in the earliest days of his Administration.”
“Until now, as far as we are aware, no court in American history has wielded an injunction to force the President to retain an agency head whom the President believes should not be entrusted with executive power and to prevent the President from relying on his preferred replacement,” Trump’s DOJ wrote in its emergency Supreme Court application.
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“This Court should not allow lower courts to seize executive power by dictating to the President how long he must continue employing an agency head against his will.”
The Supreme Court application marks Trump’s first appeal to the country’s highest court since he took office in January, kicking off a string of multiple firings at his hands, which have sparked lawsuits and judicial showdowns.
On Saturday night, the U.S. Court of Appeals for the District of Columbia Circuit rejected an attempt by the DOJ to green-light Dellinger’s axing, voting 2-1 to let him keep his job through a temporary restraining order (TRO) issued by a lower court judge last week. Trump had asked the D.C. Circuit to rule by noon Friday, saying it had “the opportunity to seek expeditious review” from the Supreme Court, should the DOJ be swatted down. The rejection came Saturday just before 11 p.m.
“This case involves an unprecedented assault on the separation of powers that warrants immediate relief,” the DOJ’s Supreme Court application says.
Last week, the Justice Department filed motions for an “immediate administrative stay” of the lower court’s TRO in both district and appeals court after it was granted by U.S. District Judge Amy Berman Jackson to allow Dellinger to keep his job while she weighs whether his firing by Trump on Feb. 7 was legal. The move came after Dellinger, who was appointed by Biden in February 2024 to enforce whistleblower laws, filed a lawsuit in the District of Columbia after being fired by the Trump administration “in a one-sentence email,” according to his federal complaint.
In its appeals motion, the DOJ pointed to Supreme Court precedent as well as former President Joe Biden’s own 2021 firing of Andrew Saul, who was social security commissioner at the time, as reasons for severing down the lifeline Jackson tossed to Dellinger last week.
“This case involves an unprecedented assault on the separation of powers that warrants immediate relief,” that application says.
In a 12-page dissent to the Saturday ruling, U.S. Circuit Judge Greg Katsas — a Trump appointee — said he believed the president “is immune from injunctions directing the performance of his official duties, and Article II of the Constitution grants him the power to remove agency heads.” Katsas noted what he described as “the extraordinary character of the order at issue,” which directs the president to “recognize and work” with an agency head whom he has already removed, which warrants “immediate” appellate review.
“As Judge Katsas observed, the TRO — which operates as an injunction against the President and requires him to reinstate an agency head whom he removed — is ‘virtually unheard of’ and ‘usurped a core Article II power of the President,’” the DOJ’s Supreme Court application says. “Courts may not enjoin the President regarding the performance of his official acts, regarding removal or otherwise.”
In their ruling, U.S. Circuit Judges Florence Pan and J. Michelle Childs said they felt that it was ultimately the lower court’s job to decide whether Dellinger was allowed to keep his job through the TRO issued by Jackson, a Barack Obama appointee, on account of TROs “ordinarily” not being an appealable order. “The government asks us to make an exception and hear its appeal because the TRO ‘works an extraordinary harm’ and is set to last for 14 days,” the judges note. “Instead of entertaining an emergency appeal of a TRO, the normal course would be for us to wait for the district court to issue a ruling on the preliminary injunction, which would be immediately appealable.
The government had requested that the appeals court “construe its stay motion as a petition for a writ of mandamus and grant the petition,” which the judges said would have the same effect of reversing the TRO.
“Indeed, many of the issues raised in the stay motion will be addressed by the district court at the preliminary-injunction hearing on February 26, 2025,” Pan and Childs said. “The district court has promised to issue its preliminary-injunction ruling with ‘extreme expedition.’”