The Supreme Court ruled Friday that an order reinstating Special Counsel Hampton Dellinger into his position will remain in place for at least a few days while a lower court process plays out.
The Trump administration had asked the justices to lift the order from Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia. The order is set to expire Wednesday, when Jackson has set a hearing on whether to more permanently block the firing of Dellinger.
In a short order Friday, at least five justices agreed to hold the Trump administration application “in abeyance” until Wednesday. Justices Sonia Sotomayor and Ketanji Brown Jackson wrote that they would have denied Trump’s request entirely, but did not explain their reasoning.
Justices Neil M. Gorsuch and Samuel A. Alito Jr. wrote that they would have granted Trump’s request. Gorsuch wrote a dissent to criticize the order from the lower court as an unprecedented step into executive authority.
“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,” the dissent said.
The court fight over Dellinger’s fate is the highest profile so far of Trump’s explicit effort to have the ability to fire every executive branch official.
Trump officials fired Dellinger earlier this month from his post at the Office of Special Counsel, which protects whistleblowers and federal employees more broadly within the executive branch. Congress passed a law requiring that the special counsel could only be removed for cause.
Dellinger sued and Jackson issued a temporary order reinstating him. The U.S. Court of Appeals for the District of Columbia Circuit refused to step in.
The Justice Department filed the application at the Supreme Court last weekend, calling the order reinstating Dellinger an “unprecedented assault on the separation of powers.”
Trump has faced numerous lawsuits over his effort to remove federal officials who have firing protections. A federal court on Tuesday ordered the Trump administration to similarly reinstate a member of the Merit Systems Protection Board after she was fired.
Fired inspectors general and a National Labor Relations Board member have also filed lawsuits over their dismissals.
Separate from the lawsuits, the Justice Department has officially notified Congress that the administration has taken the official position that legal protections for members of independent agencies like the NLRB and MSPB are unconstitutional, as well as the special counsel.
Earlier this week Trump also signed an executive order seeking to place all independent agency rulemaking under the review of White House officials.
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