Donald Trump’s administration has asked the supreme court to approve the firing of the head of a federal agency dedicated to protecting whistleblowers in the first appeal of Trump’s new term and a key test of his battle with the judicial branch.
Hampton Dellinger, the head of the office of the special counsel (OSC), is among the fired government watchdogs who have sued the Trump administration, arguing that their dismissals were illegal and that they should be reinstated.
The OSC is an independent federal agency that serves as “a secure channel for federal employees to blow the whistle by disclosing wrongdoing”.
It is also intended to enforce the Hatch Act, a 1939 law designed to ensure that government programs are carried out in a non-partisan way, and to enforce a merit system by investigating and prosecuting racial discrimination, partisan political discrimination, nepotism and coerced political activity.
Dellinger has said his office’s work was “needed now more than ever”, noting the “unprecedented” number of firings, in many cases without any specified cause, of federal employees with civil service protections in recent weeks by the Trump administration.
On Wednesday, the federal judge Amy Berman Jackson reinstated Dellinger to his position pending a 26 February court hearing, writing that the language of the 1978 law that created Dellinger’s position “expresses Congress’s clear intent to ensure the independence of the special counsel and insulate his work from being buffeted by the winds of political change”.
According to that law, the special counsel “may be removed by the president only for inefficiency, neglect of duty or malfeasance in office”.
As the Trump administration implements sweeping firings throughout the federal government, Dellinger has argued that his dismissal, via a one-sentence email that did not specify the cause, was unlawful.
Now, the Trump justice department has petitioned the supreme court to undo Jackson’s order, arguing that allowing a judge to reinstate an agency head for two weeks, pending a 26 February hearing on the case, is an impermissible check on presidential power.
“Until now, as far as we are aware, no court in American history has wielded an injunction to force the president to retain an agency head,” Trump’s acting solicitor general, Sarah M Harris, wrote in the brief, obtained by the Associated Press on Sunday.
The case is not expected to be docketed until after the supreme court returns from the Presidents’ Day holiday weekend, meaning the justices will not respond until Tuesday at the earliest.
The Trump administration argues in its brief that letting the order in Dellinger’s case stand could “embolden” judges to issue additional blocks in the roughly 70 lawsuits the Trump administration is facing so far.
It notes some of the dozen or more cases where judges have slowed Trump’s agenda, including by ordering the temporary lifting of a foreign aid funding freeze and blocking workers with Elon Musk’s so-called “department of government efficiency” team from accessing treasury department data for now.
A supreme court ruling in favor of the Trump administration in the Dellinger case would overturn decades of precedent, legal experts have said. Conservative Trump supporters have been pushing for the supreme court to overturn the 1935 supreme court ruling protecting Congress’s power to shield the heads of independent agencies from being fired by a president.
“Since my arrival at OSC last year, I could not be more proud of all we have accomplished,” Dellinger said in a statement to Politico last week. “The agency’s work has earned praise from advocates for whistleblowers, veterans, and others. The effort to remove me has no factual nor legal basis – none – which means it is illegal.”
The office of the special counsel is separate from justice department special counsels, who are appointed by the attorney general for specific investigations, such as Jack Smith.
The Associated Press contributed reporting
