Amicus Briefs
Bessent v. Dellinger
CASE SUMMARY
NCLA urges the Supreme Court vacate a district court’s temporary restraining order (TRO) requiring President Donald Trump to reinstate the fired former head of the U.S. Office of Special Counsel, Hampton Dellinger. The President has absolute constitutional authority to remove Executive Branch officials at will.
The Constitution vests all executive power in the President. The Founders understood that “executive power” included the ability to execute the law, as well as the nation’s action, strength, or force. That understanding confirms that a President’s authority to remove subordinates must be absolute. As the Supreme Court recently held in Seila Law v. Consumer Financial Protection Bureau, the President maintains authority to both “supervise and remove the agents who wield executive power in his stead.” That removal authority must be absolute for the President to be able to uphold his constitutional duty to “take Care that the Laws are faithfully executed.”
Although the Constitution expressly limits the President’s power to appoint Executive Branch officials by requiring congressional approval of principal officers, it leaves his removal authority unqualified. That difference in treatment means that the President’s power to remove principal officers like Dellinger remains unrestricted.
The President can delegate executive authority to subordinates, which is often practically necessary to run the government. The threat of removal is the only certain way he can control his delegatees, ensuring that their actions or inactions remain consistent with the President’s policies and priorities. A federal district court judge lacks the power to enter an administrative stay or TRO to stop the President from firing his subordinate—let alone to force that person’s reinstatement. That is why prior lawsuits from fired federal officials have sought back pay, not reinstatement. The district judge overreached massively here in usurping executive power. Surprisingly, two-thirds of the reviewing panel at the U.S. Court of Appeals for the D.C. Circuit refused to bring that judge to heel.