WASHINGTON — The Supreme Court on Friday turned down President Trump’s appeal on his effort to fire an agency official.
Instead, the justices said they would weigh in on the matter only after a judge rules next week on whether the firing was legal.
The decision is a small and temporary setback for Trump and his lawyers,
Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Elena Kagan, Brett M. Kavanaugh and Amy Coney Barrett agreed to put off a decision for now.
Justices Sonia Sotomayor and Ketanji Brown Jackson said they would have rejected Trump’s appeal. Meanwhile, Justices Neil M. Gorsuch and Samuel A. Alito Jr. said they would have granted it and required the judge to reconsider her decision that blocked the firing.
Trump’s lawyers may have overplayed their hand by rushing an appeal to the high court on Sunday. They described the temporary halt on firing the head of the small agency that protects whistleblowers as “an unprecedented assault on the separation of powers” that would impose “irreparable harm” on the president.
Last week, a federal judge in Washington issued a temporary restraining order to block the firing of Hampton Dellinger until Feb. 26.
Dellinger was appointed last year to a five-year term to lead the Office of Special Counsel, an independent agency created by Congress in 1978 to protect federal employees who report abuse or wrongdoing.
Judge Amy Berman Jackson granted the temporary restraining order and said she would issue a ruling in the case after holding a hearing Feb. 26.
Trump and his lawyers have aggressively asserted his executive power. They say the president can fire officials who hold executive or policy-making positions throughout the government, including those in agencies that were given independent authority by Congress.
The Office of Special Counsel was created by Congress in 1978. President Carter signed the bill into law and said the new independent agency would defend federal employees who suffered abuse or exposed wrongdoing.
The agency has 29 employees and and keeps a rather low profile.
Last year, President Biden appointed Dellinger, a North Carolina attorney, to a five-year term as head of the agency, and he was confirmed by the Senate.
On Feb. 7, Trump’s personnel director sent Dellinger a one-sentence email saying he had been terminated, effective immediately.
Dellinger sued, arguing that his firing was in “flagrant disregard” of the law. Judge Jackson put his firing on hold temporarily.
The U.S. court of appeals refused, by 2-1 vote, to set aside her order.
Trump’s acting solicitor general, Sarah Harris, sent an emergency appeal to Chief Justice Roberts on Sunday.
She called the judge’s temporary reinstatement of Dellinger “an unprecedented assault on the separation of powers that warrants immediate relief.”
Roberts has written several opinions holding that the president has the broad authority to remove officials who wield executive power.
Conservatives refer to this stance as independent executive theory, which holds that the Constitution gave the president the power to control all the executive officers of the U.S. government.
“Under our Constitution, the ‘executive power’ — all of it — is vested in a President,” he wrote in 2020. That means the president has a nearly “unrestricted removal power” over officials who wield executive or policy-making authority, Roberts said.
That decision said the president was free to remove the head of the Consumer Finance Protection Bureau, even though Congress had said the appointed director could be fired only for cause.
Trump’s lawyers cited that precedent as confirming the president’s authority over agency officials like Dellinger.
The chief justice’s 2020 opinion did not overrule earlier decisions that said Congress could establish multi-member commissions or boards whose members would be appointed for fixed terms.