On a couple of occasions lately I have put much jovial (and blind) hope into the following passage:
For those reasons, this Court agrees with the government that term-of-office provisions do not themselves limit the removal power.
My overreliance on the simple reading has lead me to assume this regarding employees of the Executive Branch of the government of the United States of America: ‘Trump can fire anybody he wants.’
That assumption was supposed to comfort me when headlines like this hit my screen:
DC Circuit Court Judge Orders OBM, Treasury to Reinstate Legally Protected Official Who Trump Fired
As we wrote just over a week ago, the United States Supreme Court decided to take a pass on ruling on President Donald Trump’s firing of Hampton Dellinger, who until recently ran the Office of Special Counsel.
Upon closer reading, a quote to an earlier RedState post at that link provided the undercutting flaw in my hope:
The US Supreme Court put off ruling on the case of fired Special Counsel, the improbably named Hampton Dellinger. In a ruling with dissents by four justices, the Supreme Court agreed to put off ruling on the government’s appeal of the order reinstating Dellinger until the DC Circuit issues its ruling …
The backstory is that President Trump fired Dellinger from his perch as head of the Office of Special Counsel. He is the sole proprietor of that office and is protected from dismissal by law except in cases of “inefficiency, neglect of duty or malfeasance in office.” Dellinger sued. The trial judge issued a temporary restraining order reinstating him. The government appealed to the DC Circuit. The DC Circuit, in a 2-1 decision, but with a strongly worded dissent, upheld the TRO. The government fired off a blistering appeal to the Supreme Court.
The key point is highlighted above…and a little more diligent digging was done this morning to square that with my earlier blind-faith-based assumption. Enter The Conservative Treehouse:
This ruling stems from the same mindset as … the entire organization of professional Lawfare activists… . The collective belief is that in the modern “continuity of government” framework, the bureaucracy of government controls things, not the elected and plenary President.
Basic constitutional civics has been destroyed in the modern era by progressive advocacy saying the executive branch is an omnipotent organism that is not controlled by the duly elected President of the United States. Current Lawfare activists and activist judges seek to retain this bastardized view of constitutional government.
[Emphasis added]
The added value of that post was the links to information on Spicer v. Biden and Severino v. Biden buried in the comments. It seems Spicer relied on Severino, and I suspect language like this will cause problems:
Because the plain meaning of [the] enabling statute imposes no removal restriction, Plaintiff loses his removal claim on the merits. As a starting point, the dearth of specific language as to removal is telling. As in Spicer [the] organic statute does not “insulate [Council] members from removal,” it is, “in that respect, . . . unlike both Article III of the Constitution, which provides that federal judges ‘shall hold their offices during good behavior,’ and the many federal statutes that allow only removal for cause. … Supreme Court precedent teaches that, “as a matter of statutory interpretation, . . . absent [such] a ‘specific provision to the contrary, the power of removal from office is incident to the power of appointment.’”
So when I go googling the “Office of the Special Counsel Term Limits“, I get this:
The OSC is an independent agency in the Executive Branch and the Special Counsel, the
head of the OSC, is appointed by the President, with advice and consent from the Senate.
Unlike most agency heads, the Special Counsel does not serve at the pleasure of the President.
By statute, the Special Counsel serves a 5-year term and “may be removed by the President only
for inefficiency, neglect of duty, or malfeasance in office.” 5 U.S.C. § 1211(b).
[Emphasis added]
Even this non-lawyer can detect what appears to be a clear removal restriction in there. All of the above provides Conservative Chief Justice John Roberts enough ammunition to do what he does best…to the great thrill of the Left, the TDS chirpers, and the rationalizers of the Soft Center Right.
But…what a mess that is. “An independent agency in the Executive Branch” that “does not serve at the pleasure of the President.” How does any of that square with “The executive Power shall be vested in a President of the United States of America.” I would ask how we even got to this point…but, yes, I have been posting for quite some time about the anti-intellectualism of the Un-Serious Era in America. Outside of those proud to be called Progressives, there is no finer figure of just that than Conservative Chief Justice John Roberts.
As the above quote from Sundance says: “Basic constitutional civics has been destroyed in the modern era by progressive advocacy saying the executive branch is an omnipotent organism that is not controlled by the duly elected President of the United States.” Do not be surprised when a majority of The Court falls in line with their progressive feelings (or just more displays of spineless Leftward genuflecting) and chooses not to play along with the clear corrective mood (i.e., will) of We the People regarding American Liberty and the associated Constitutional Republic.
It will take more than a couple of months and (what should be) one easy case to scuttle the Progressive machine. I fear this will be the first of many setbacks…but the Trump 2.0 Administration is on a four-year mission. Hang in there.
the philo t. custis institute 