. . . What remains to be seen is whether the Supreme Court ultimately will rule that the confinement of that executive power to intra-government enforcement permits something less than full Article II oversight by the President. . . .
Introduction
On February 7, 2025, the Trump administration removed Hampton Dellinger from his position as Special Counsel of the U.S. Office of Special Counsel (“OSC”). This dismissal was made without citing any of the three required statutory justifications for removal—(1) inefficiency, (2) neglect of duty, or (3) malfeasance in office—prompting an immediate legal challenge by Dellinger. In response, the U.S. District Court for the District of Columbia issued a temporary restraining order (“TRO”) reinstating Dellinger. Relying on the Supreme Court’s New Deal-era decision in Humphrey’s Executor v. United States, 295 U.S. 602 (1935), the district court determined that Dellinger is likely to succeed in demonstrating that the OSC’s statutory removal protections impose a lawful constraint on presidential power.
Since the district court’s ruling, two significant developments have occurred. First, the U.S. Court of Appeals for the D.C. Circuit declined to hear the administration’s appeal of the TRO. Second, the Department of Justice (“DOJ”) has filed an emergency application with the U.S. Supreme Court seeking to vacate the TRO and to obtain an immediate administrative stay. The DOJ’s filing asserts that the President’s removal of Dellinger is an unambiguous exercise of Article II authority and that the district court’s reinstatement of Dellinger represents an unprecedented intrusion into executive power.
The case raises fundamental constitutional and strategic questions about the scope of executive authority over so-called “independent agencies,” which, if the administration prevails, may exist more in name than in function. Beyond the constitutional questions, the case also holds strategic oversight importance to the Trump administration. The OSC plays a key role in acting upon information provided by civil service whistleblowers who identify instances of waste, mismanagement, and abuse within government agencies and in enforcing the Hatch Act, which restricts political activities of government employees. Given the Trump administration’s public commitment to reshaping the federal workforce and addressing perceived internal bureaucratic resistance to its policy directives, control over the OSC is likely viewed within the administration as a necessary tool in its management of the sprawling federal bureaucracy.
Background: The OSC and Dellinger’s Tenure
Established under 5 U.S.C. § 1211, the OSC is a prosecutorial agency responsible for investigating disclosures of waste, mismanagement of funds, abuse of authority, and violations of law within the federal civil service. The OSC’s jurisdiction is not overarching, as oversight of the intelligence community is largely excepted from its work. Each Special Counsel is appointed to a statutory five-year term.
Dellinger was appointed by President Biden and sworn into office on March 6, 2023. His five-year term, absent removal, will extend well into the Trump administration. During his tenure, Dellinger most notably took action against a Federal Emergency Management Agency (“FEMA”) supervisor accused of directing employees to ignore homes displaying pro-Trump signage while delivering hurricane relief. The OSC’s investigation determined that the supervisor’s actions violated the Hatch Act’s prohibition on politically motivated discrimination in the administration of federal programs. While this enforcement action occurred during the Biden administration, it was perceived by some as favorable to Trump’s supporters, as it addressed allegations of bias against them. See generally Press Release by U.S. Office of Special Counsel, “OSC Files Hatch Act Complaint Seeking Discipline Against FEMA Employee for Political Discrimination in Aftermath of Hurricane Milton” (Feb. 11, 2025).
Nevertheless, Dellinger’s holdover status did not go unnoticed by the Trump administration and its broader efforts to realign the federal bureaucracy. Given the OSC’s unique role in determining how internal allegations of government wrongdoing are handled, there was perhaps little surprise in the administration’s efforts to appoint its own Special Counsel to ensure that federal agencies function in line with the administration’s policy priorities.
The District Court’s TRO: Legal Basis and Rationale
The district court ruled that because the OSC’s removal statute expressly conditions the Special Counsel’s removal on a showing of “inefficiency, neglect of duty, or malfeasance in office,” the Trump administration’s dismissal of Dellinger without cause was therefore unlawful. The district court explained that, in the absence of a statutory reason for dismissing Dellinger, the court could only rule in favor of the Trump administration by finding that the OSC removal statute is unconstitutional, which the court was not inclined to do.
The district court acknowledged that in its recent Seila Law decision, the Supreme Court had ruled that similar statutory for-cause restrictions placed on the President’s ability to dismiss the head of the Consumer Finance Protection Bureau (“CFPB”) were unconstitutional. See Seila Law LLC v. CFPB, 591 U.S. 197, 204 (2020). There, the Court announced the general rule that “‘[t]he President’s power to remove—and thus supervise—those who wield executive power on his behalf flows from the text of Article II,’ and that ‘[w]ithout such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.’” Decision at 9-10 (quoting Seila Law, 591 U.S. at 204).
The district court, nevertheless, concluded that the Supreme Court “did not announce a blanket rule” in Seila Law and instead had previously recognized exceptions, for example, in its Humphrey’s Executor decision. D. Ct. Decision at 10. The Supreme Court’s ruling in each case was derived from its analysis of the powers granted to each agency head by statute. According to the district court, therefore, “Congress’s ability to impose removal restrictions ‘will depend upon the character of the office.’” Id. at 10 (quoting Seila Law, 591 U.S. at 215).
In Humphrey’s Executor, the Supreme Court found that the five-member board of the New Deal-era Federal Trade Commission (“FTC”) were empowered merely to conduct factfinding and advisory functions which involved collecting economic data, issuing reports, and making recommendations to Congress. Their powers were therefore “quasi-legislative and quasi-judicial” rather than executive in nature, thereby justifying the restrictions placed on the President in removing them from office. See Humphrey’s Executor, 295 U.S. at 619, 623–25, 628–29. Unlike Special Counsel Dellinger, the FTC commissioners had no power to prosecute violations of federal law. According to the district court, however, the common thread among them was statutory text requiring the agency officials in both settings to satisfy specific statutory qualifications for their appointments and to act as impartial non-partisans. See D. Ct. Decision at 10-11.
In Seila Law, the Supreme Court found that the CFPB Director exercised considerably more executive power than the FTC Commissioners in Humphrey’s Executor. In contrast, the CFPB Director could “unilaterally issue final decisions awarding legal and equitable relief in administrative adjudications” and could impose “daunting monetary penalties against private parties . . . in federal court.” Seila Law, 591 U.S. at 218-19. The Supreme Court described this delegation of authority as “a quintessentially executive power not considered in Humphrey’s Executor” and therefore struck down the statutory limitations on the President’s prerogative to remove the Director. Id.
In distinguishing the statutory authority of OSC’s Special Counsel from the power given to the CFPB Director in Seila Law, the district court relied on the Supreme Court’s own observations in Seila Law about the OSC and its enabling statute. There, by comparison to the CFPB, the Court commented that “[t]he OSC exercises only limited jurisdiction to enforce certain rules governing Federal Government employers and employees.” Id. at 221. Of particular importance to the district court, the Supreme Court said, “It does not bind private parties at all or wield regulatory authority comparable to the CFPB.” Id. (emphasis added).
Thus, while gesturing to other limitations on OSC power, the district court emphasized a distinction first proposed by the Supreme Court itself in Seila Law that the OSC “is an agency with limited jurisdiction: its job is to investigate government employees’ allegations of specifically identified prohibited personnel practices, and where appropriate, to seek corrective or disciplinary action.” D. Ct. Decision at 15. And “it has no authority over private actors.” Id. For these reasons, the district court concluded that the OSC Special Counsel “cannot be compared to those involved when the Supreme Court found the removal for cause requirement to be an unconstitutional intrusion on Presidential power.” Id. at 16.
In retrospect, the authority exercised by the OSC Special Counsel has little in common with the safe harbor facts of Humphrey’s Executor. And while the district court made no specific finding as to whether the OSC’s authority to prosecute government employees for violations of certain federal laws is, itself, an exercise of executive power, it undoubtedly is executive power in the traditional sense. What remains to be seen is whether the Supreme Court ultimately will rule that the confinement of that executive power to intra-government enforcement permits something less than full Article II oversight by the President.
The DOJ’s Emergency Application to the Supreme Court
The DOJ’s emergency application to the Supreme Court presents a direct challenge to the district court’s reliance on Humphrey’s Executor. The government argues that the removal restriction imposed by 5 U.S.C. § 1211(b) is unconstitutional because it impermissibly limits the President’s ability to remove a principal officer who indisputably exercises executive authority. The DOJ contends that the district court improperly extended Humphrey’s Executor to a setting where it does not apply, given that the Special Counsel’s authority is not merely advisory or quasi-legislative but, rather, directly prosecutorial in nature. Specifically, the DOJ asserts that OSC Special Counsel is tasked with enforcing four distinct federal laws and empowered to promulgate related regulations, all of which “are executive functions—and significant ones at that.” DOJ Br. at 15.
According to the DOJ, Seila Law governs the analysis of removal protections for the OSC Special Counsel. In Seila Law, the Supreme Court held that the CFPB director’s removal protections were unconstitutional because they impeded the President’s ability to oversee a principal officer exercising executive power. The government asserts that the Special Counsel wields similar unilateral authority over investigations, enforcement actions, and disciplinary measures, making it impermissible to shield the office from direct presidential control.
The DOJ acknowledges that in Seila Law, the Supreme Court specifically distinguished the OSC’s jurisdiction from that of the CFPB, noting that the OSC’s functions are limited to federal personnel matters. However, the government argues that this distinction does not justify a departure from Seila Law’s holding, as the Special Counsel still exercises significant prosecutorial discretion and executive authority over federal employees, issuing subpoenas, initiating enforcement actions, and imposing penalties. The DOJ contends that the Constitution does not permit Congress to restrict the President’s ability to remove an officer tasked with enforcing federal law, regardless of whether those laws regulate private parties or government employees. In short, the DOJ argues that “Article II contains no exception for ‘limited’ exercises of executive power that purportedly affect only ‘small’ groups of people.” DOJ Br. at 18.
Further, the government argues that the district court improperly ignored Collins v. Yellen, 594 U.S. 220 (2021), where the Supreme Court reinforced its holding in Seila Law, striking down removal restrictions placed on the Federal Housing Finance Agency (“FHFA”) director. The DOJ asserts that Collins stands for the principle that agency heads wielding substantial enforcement authority must remain subject to direct presidential oversight. Applying this reasoning, the DOJ argues that the Special Counsel cannot be shielded from at-will removal.
In sum, the DOJ’s emergency application presents the Supreme Court with an opportunity to clarify the scope of Humphrey’s Executor and to affirm the general rule announced in Seila Law that principal officers with enforcement and prosecutorial authority must be removable at-will by the President. The DOJ emphasized, “There are only four single agency heads upon whom Congress has sought to confer tenure protection: the Directors of the [CFPB] and [FHFA], the Commissioner of Social Security, and the Special Counsel here.” DOJ Br. at 13. The DOJ noted that all but the OSC Special Counsel have been determined to be “undisputably subject to at-will removal under Article II” and stresses that “[t]his Court’s precedents foreclose any special exception for the Special Counsel.” Id.
Conclusion
By declining to cite a statutory basis for removal, the Trump administration ensured that this dispute would center on a fundamental constitutional question rather than judicial interpretation of the statutory removal conditions. The breadth of those conditions suggests that the administration could have removed Special Counsel Dellinger under a legally defensible rationale entitled to judicial deference, but instead, it invited a constitutional challenge that fits within a broader strategy to consolidate executive authority. The Supreme Court’s ruling in this case therefore may not only determine the fate of Special Counsel Dellinger but also clarify the extent to which Congress can insulate executive officers from presidential oversight, a question with lasting implications for future administrations and the balance of power between the branches of government.
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