Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—Trump administration seeks Supreme Court vacatur of D.C. Circuit restraining order in Dellinger lawsuit, (Feb 18, 2025)

By Patricia K. Ruiz, J.D.

Bessent and his team argued that the D.C. Circuit’s ruling risks emboldening district courts to issue TROs enjoining the President from taking myriad other actions implicating executive powers.

Treasury Secretary Scott Bessent has applied to the U.S. Supreme Court to vacate a temporary restraining order issued by the U.S. District Court for the District of Columbia preventing the Trump administration from removing Hampton Dellinger from his position as special counsel of the Office of Special Counsel (OSC). Bessent and his team also requested an immediate administrative stay of the district court’s order pending the court’s consideration of the application.

Injuries to executive powers. Bessent argues that the instant case “involves an unprecedented assault on the separation of powers that warrants immediate relief.” The application states that the Court observed recently that Congress cannot act on, and courts cannot examine, “the President’s actions on subjects within his ‘conclusive and preclusive’ constitutional authority,” including the President’s “unrestricted power of removal” with respect to executive officers of the U.S. whom the President has appointed. Enjoining the President and preventing him from exercising these powers “inflicts the gravest of injuries on the Executive Branch and the separation of powers,” the application states. The application notes that, in the last five years, the Court has held twice that restrictions on the President’s authority to remove principal officers who serve as the sole heads of executive agencies violate Article II. The application argues that, when the President removed Dellinger as the single head of the OSC, he engaged in an uncontroversial exercise of his Article II powers.

Bessent and his team asked for the Court’s intervention, reasoning that the district court’s rulings irreparably harm the presidency by curtailing the President’s ability to manage the Executive Branch in the earliest days of his administration. Even when courts do not enjoin the President himself, the application argues, the Court has long held that a court “will not, by injunction, restrain an executive officer from making a wrongful removal of a subordinate appointee, nor restrain the appointment of another,” noting that challenges to removals have historically been litigated through suits for back pay, not reinstatement. The ruling risks emboldening district courts to issue TROs enjoining the President from taking myriad other actions implicating executive powers, the application argues.

Thus, Bessent’s team requested that the Court vacate the district court’s order and “end the practice whereby courts seize Article II powers for two weeks, yet disclaim the availability of any appellate review in the meantime.”

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