We Did Something Dumb

…and the Trump DOJ Jumped All Over It

There’s hardly ever a good reason to start a battle that you know you’re going to lose. It only makes the enemy look bigger and stronger—sometimes bigger and stronger than they really are. Morale really sinks when your own stupidity causes you to lose the first battle of a long war.

Many of the 75 lawsuits filed against the Trump administration are strong and will eventually succeed, but there is one that is a loser, because the issue was already decided by the Supreme Court in 2020.

Historical Background

A problem exists because the Constitution does not specify who has the power to fire employees of the executive branch. There is a clear process for hiring: the president appoints, and the Senate confirms, but the Constitution does not prescribe a process for removal.

During the 19^th century, there were a few decades when Congress asserted that Senate consent was necessary for removal of Senate confirmed officers. However, this law was eventually repealed, and the president’s power to remove federal officers became the accepted norm.

As the US grew into a complex industrial nation, Congress began to create special agencies that were independent of the president and Congress. The first of these was the Interstate Commerce Commission created in 1887 to ensure that railroads charged every customer the same rate. Another early example is the Federal Reserve Bank, created in 1913.

The success of the Federal Reserve in stabilizing the currency encouraged Congress to create other boards of a similar kind, such as the Federal Trade Commission, Securities and Exchange Commission, the Federal Deposit Insurance Corporation, and the Postal Service. The Supreme Court has described these organizations as “a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power.” [Seila Law, 591 U.S. at 216.5].

The members of these commissions are appointed by the president and confirmed by the Senate, but they serve fixed staggered terms and cannot be fired by the president. The existence of these boards and commissions shields certain aspects of complex decision-making from the turmoil of the political process, but it also shields politicians from the fallout of painful decisions that these boards sometimes make. Yet none of these organizations is omnipotent or eternal. Any of them can be dissolved by Act of Congress.

New Independent Agencies

In the last 50 years, Congress began to create a new type of independent agency headed by a single Senate-confirmed individual, not a board. Eventually, there were four of these agencies:

1. Office of Special Counsel (1989)— investigates and prosecutes violations of the employment rights of federal civil servants before the Merit Systems Protection Board. This is completely distinct from special counsels, such as Jack Smith, who are appointed from time to time by the US Attorney General to investigate and prosecute federal crimes.

2. Social Security Administration (1994)— previously included within the Department of Health and Human Services

3. Federal Housing Finance Agency (2008)—successor to previous federal housing corporations Fannie Mae and Freddie Mac.

4. Consumer Financial Protection Bureau (2010)— created to protect consumers from predatory financial practices

Congress specified that the heads of these four independent agencies serve terms of five years or more and could be fired only for cause, namely, “inefficiency, neglect of duty, or malfeasance in office.”

Growing Pushback

Both the Carter and Reagan administrations expressed constitutional objections to this new type of agency. Many argued that the constitution gives the president alone the responsibility to faithfully execute the laws, which he cannot do unless he can discharge an agency head who has lost his trust.

The Supreme Court agreed with this assessment in 2020 in Seila Law LLC v. Consumer Financial Protection Bureau, making the head of the agency serve at the pleasure of the President. The similarly structured Federal Housing Finance Agency was also brought under the complete control of the President in 2021. Soon after, President Joe Biden used this new power to fire the Trump-appointed head of the Social Security Administration (2021), which showed that he acquiesced to the new constitutional interpretation.

So, the question arises, can we criticize Trump for taking the same action in 2025 that President Biden did in 2021? President Biden appointed Hampton Dellinger head of the Office of Special Counsel in 2024 and President Trump fired him by email on Feb 7, 2025. A DC federal judge ordered the Trump Administration to reinstate Dellinger and permit him to go forward with his work while the matter was in litigation. The Trump Administration, knowing they had a winning case, quickly appealed to the DC Appeals Court and then to the Supreme Court. Trump’s lawyers pointed out that they had not appealed any other temporary restraining order imposed upon the Trump administration.

Of course they didn’t. They only appealed a case where they had a certainty of winning. In Dellinger v. Bessent, the Trump DOJ knows it’s holding aces and it’s playing them hard.

What Do You Do When You Hit a Road Bump?

We need to keep cool and realize that Trump's big hurry to get to the Supreme Court is actually a good sign— believe me, the Trump DOJ doesn’t want any other case to go to the Supreme Court anytime soon.

In the days to come, you will hear panicked voices: “The Supreme Court is siding with Trump!” Yes, in this one instance . . .

But I do not think that the Supreme Court can give its approval to Trump on other issues. One big no-no is impoundment — the refusal to spend money as Congress has appropriated it. Another big outrage is DOGE’s slipshod treatment of federal employees’ and citizens’ private data.

The Administrative Procedures Act requires the federal government to put its procedures in writing and show how they reasonably accomplish the policies set out in federal law. There were no written procedures that regularized the DOGE Rats barging into federal offices and demanding access to government computers. Remember that Trump 1.0 got tripped up regularly by that pesky Administrative Procedures Act.

BOTTOM LINE: Don’t be fooled by Trump’s winning his first Supreme Court battle. It’s the only easy win he’s going to get.

This is war, and it’s not over.

I highly recommend Steve Vladeck’s article on this subject. The court's ruling on Dellinger v. Bessent won't tell you anything about how the court will treat Trump in the future.

125. The Court's First Trump II Case Won't Be a Bellwether