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“The executive power shall be vested in a
President of the United States of America.”
- Article II, Section 1, U.S. Constitution
On Saturday, March 1, 2025, Judge Amy Berman Jackson issued a decision in Hampton Dellinger’s case against the Trump Administration.
Hampton Y. Dellinger is a Democratic politician. He ran as a Democrat for Lieutenant Governor of North Carolina. He was a partner at the law firm of Boies Schiller Flexner, where Hunter Biden was a lawyer. The firm allegedly did work related to Burisma, the Ukrainian energy firm for which Hunter Biden was a director.
Dellinger is obviously a poor match as an agency head in the Trump Administration, but he is now the chief of the Office of Special Counsel, which has a key role in federal personnel matters
The Office of Special Counsel.
The Office of Special Counsel (OSC) was created by Congressional statute in 1989. The OSC has authority to oversee and investigate certain employee issues in the federal workforce, including Whistleblower complaints.
The OSC is run by the Special Counsel, who is appointed by the President and confirmed by the Senate for a 5-year-term. Under Congressional statute (5 U.S.C. section 1211, et seq.) the President can only fire the Special Counsel for cause. And therein lies the rub.
In February of 2024, the Senate confirmed Mr. Dellinger as head of the OSC. The confirmation was contentious. Dellinger was barely confirmed; the vote was 47-49.
The Dellinger case.
On February 7, 2025, the Trump Administration fired Dellinger, and Dellinger sued the Trump Administration for firing him. The litigation has been pending in D.C. federal courts all month.
Dellinger demanded a court order requiring the Trump Administration to refrain from interfering with how he managed the 128 staffers on the OSC payroll. In other words, Dellinger wants to be an agency chief who does not answer to the President.
Trump Administration lawyers argued that Article II of the Constitution gives the President the power to fire agency heads. Indeed, it does. The catch for the Trump Administration is that firing the Special Counsel is not so easy.
The Dellinger case has been pending before D.C. District Court Judge Amy Berman Jackson, an Obama appointee.
Judge Jackson’s Order.
On Saturday, March 1, 2025, Judge Jackson issued an order that effectively keeps Dellinger in the OSC job and orders the Trump Administration to not interfere with his duties. That’s the end of the case unless the Administration appeals.
But an appeal won’t fix this mess. The litigation would go on for years. Because the OSC statute states the Special Counsel is appointed for a 5-year-term, there is no guarantee that the Trump Administration would win on appeal.
No President, Democrat or Republican, can properly manage the federal workforce when he or she has a hostile political enemy running the OSC. It is inevitable that a partisan like Dellinger will play politics.
In her March 1 order, Judge Jackson argued that the OSC does not have what she called “significant” powers. However, the Special Counsel (i.e. Dellinger and his 128 staffers) can do investigations. The OSC can issue supboenas to other federal agencies. It can order depositions of federal employees, including agency heads and even, in theory, the President himself.
It’s a hot mess.
A solution.
The OSC’s term should be aligned with the President’s term.
Congress is going to have to amend 5 U.S.C. section 1211 to allow the President to hire and fire the OSC.
Trump should add that to his “big, beautiful bill.”
Congress does NOT need to step in!!!
https://x.com/mrddmia/status/1896017484609962071
Mike Davis
@mrddmia Dear Supreme Court Justices:
Can Congress pass a law ordering you to keep your law clerks and secretaries against your will? Nope. Violates Article III.
Can Congress pass a law ordering the President to keep executive officers against his will? Nope. Violates Article II.