Judge Creates Constitutional Crisis To Be Cured By SCOTUS

“It is DECLARED that plaintiff Hampton Dellinger is the Special Counsel of the Office of Special Counsel,” and he “shall be the Special Counsel of the Office of Special Counsel for the remainder of his five-year term unless and until he is removed in accordance with 5 U.S.C. §1211(b).”

Judge Amy Berman Jackson, a Barack Obama appointee, entered that ruling late Saturday evening in a two-page order. Judge Berman Jackson’s order then further mandated that five executive branch officials “recognize plaintiff’s title and position as Special Counsel of the Office of Special Counsel,” and “not obstruct or interfere with his performance of his duties.” And just like that, a mere two months into the president’s second term, a solitary federal judge created a constitutional crisis.

Consider the scenario: Donald Trump calls Hampton Dellinger, telling him “I’m firing you again.” The president then directs other officials — not the named defendants — to process Dellinger’s termination papers, to prevent Dellinger’s access to federal property or his former office, and to disconnect Dellinger’s cell phone and computer access.

As Judge Berman Jackson recognized in her accompanying 67-page opinion, federal courts lack the power to enjoin the President of the United States. So, the Obama appointee could not — and thus did not — order Trump to recognize Dellinger as the special counsel, enjoin him from firing Dellinger again, or otherwise prohibit Trump from doing anything to obstruct or interfere in Dellinger’s performance of his duties. Instead, she entered that command against the five defendants in the case: Sergio Gor, the Director of the White House Presidential Personnel Office; Karen Gorman, the Principal Deputy Special Counsel; Karl Kammann, the Chief Operating Officer of the Office of Special Counsel; and Russell Vought, the Director of the Office of Management and Budget.

The court’s injunction, by both its terms and general legal principles, binds only those five named defendants. Accordingly, Trump could easily sidestep them to out Dellinger as the special counsel.

Trump won’t do that, though, because the Supreme Court will soon overturn Judge Berman Jackson’s order. But the fact that scenario could play out, launching a revolving door of new defendants ordered by a federal judge to ignore the staffing decisions of the President of the United States, reveals the danger that efforts over the last month to obtain a coup by court order represents to our constitutional republic.

Article II of the Constitution provides that a president possesses the executive power. American voters elected Donald Trump president, giving him the executive power and the authority to delegate it, or not delegate it, as he believes appropriate. The Constitution provides some checks to that authority, for instance by requiring “the Advice and Consent of the Senate” for certain appointments, such as “Officers of the United States. In contrast, Article II’s silence concerning removal, “confers upon the President an absolute and unqualified removal authority.”

Yet Judge Berman Jackson held Trump could not remove Dellinger because Congress had specified the special counsel “serve a five-year term with removal only for cause.” Congress cannot trump the Constitution, however, which is why the Supreme Court previously held in Seila Law v. CFPB and Collins v. Yellen that the president could remove the heads of those agencies at will, notwithstanding the relevant statutes providing for for-cause removal only. In fact, based on that precedent, former president Joe Biden, in 2021, fired the head of the Social Security Administration without cause.

In her Saturday opinion, Judge Berman Jackson distinguished the Office of Special Counsel from the Consumer Financial Protection Bureau (at issue in Seila Law) and the Federal Housing Finance Agency (at issue in Collins), as well as from the Social Security Administration. The Obama appointee then concluded that “this case does not present the affront to the President’s Article II authority, . . .” Accordingly, Judge Berman Jackson ruled Trump’s firing of Dellinger in contravention of the federal statute, which provided a president may only remove a special counsel “for inefficiency, neglect of duty, or malfeasance in office,” was illegal and thus void.

The federal judge went further, however, entering an injunction confirming her earlier orders reinstating Dellinger and directing Trump Administration officials to recognize Dellinger as special counsel and do nothing to interfere in his execution of that position. This remedy presents a completely separate Article II problem, as Justices Gorsuch and Alito stressed just over a week ago when the Trump Administration appealed to the high court to halt the court’s interference in the president’s command of the executive branch.

The Trump Administration first sought an assist from the Supreme Court two weeks ago, following Judge Berman Jackson’s entry of a Temporary Restraining Order (“TRO”) reinstating Dellinger as special counsel. Although the TRO was soon set to expire, the Trump Administration argued the district court order “manifestly violates the Constitution and defies [the] Court’s precedents,” and thus “should not be allowed to remain in place for one more day — much less for two weeks.”

On Friday, February 21, 2025, rather than rule on the Trump Administration’s application for relief from the TRO, the Supreme Court held the request “in abeyance until February 26, when the TRO is set to expire.” Both Justices Sotomayor and Jackson indicated they would have denied the application, while Justices Gorsuch and Alito dissented.

The dissent, authored by Justice Gorsuch and joined by Justice Alito, concisely summarized the constitutional crisis at hand: “The court effectively commanded the President and other Executive Branch officials to recognize and work with someone whom the President sought to remove from office.” 

However, rather than address Trump’s contention that he held unconditional removal authority over the special counsel, the two-justice dissent instead stressed that courts lack the equitable power to enjoin the removal of executive officers or to order their reinstatement. Rather, “throughout the Nation’s history, [when] various presidentially appointed officials like Mr. Dellinger have contested their removal . . . courts have heard and passed on their claims, [b]ut those officials have generally sought remedies like backpay, not injunctive relief like reinstatement.”

While the Supreme Court had only held the case in abeyance until Wednesday, the justices did nothing after Judge Berman Jackson, on Wednesday, extended her TRO through Saturday. On Saturday, then, she entered a final order in the Dellinger case, meaning these hefty constitutional issues will return to the high court. 

Whether the justices act immediately on the pending application — as the Trump Administration requested last week — or dismiss that application as “moot,” as Dellinger argued the Supreme Court should do, remains to be seen. The Trump Administration prepared for both possibilities, with the Department of Justice on Saturday immediately filing an appeal of Judge Berman Jackson’s final order, as well as filing a new motion to stay. Absent intervention by the Supreme Court on the previously filed application, then, the Trump Administration will soon file with the Supreme Court a new request for a stay of the final order and a petition for review.

The Supreme Court may allow the normal appeal process to proceed on the question of whether Trump, by virtue of Article II of the Constitution, has the unqualified power to remove Dellinger. However, with Judge Berman Jackson’s injunction ordering Dellinger reinstated now final, the Supreme Court is unlikely to delay consideration of the propriety of that equitable remedy, for it represents a clear and intolerable interference in the president’s executive authority.

While the Supreme Court should have said as much two weeks ago, there is still time for the justices to avert an unnecessary constitutional crisis created by litigants and their handpicked favorable judge seeking to control the executive branch.

Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.