Trump takes purposeful aim at 1935 Supreme Court precedent limiting presidential firing authority
As federal judges in Washington D.C. act to block or delay President Donald Trump's efforts to fire and replace certain executive branch officials and agency heads, it has become clear that Trump is spoiling for a fight at the Supreme Court over that issue.
Indeed, Trump's Acting Solicitor General Sarah Harris recently informed congressional Democratic leaders that the president aims to quickly get a case before the high court that will provide an opportunity for the justices to overturn a nearly 90-year-old precedent, according to Fox News.
That precedent is the Supreme Court's 1935 decision in Humphrey's Executor v. U.S., which conflicts with other court precedents outlining broad presidential authorities by limiting the power of the president to fire the heads of purportedly "independent" agencies, boards, and commissions within the executive branch, except for cause.
Trying to get a case to the Supreme Court
Some of the executive branch officials that President Trump has fired since taking office last month have filed lawsuits in opposition to the move and, in some instances, have found favor with Democrat-appointed district court judges who've cited Humphrey's Executor and taken action to halt and reverse the terminations, which of course were swiftly appealed by the Trump administration.
In light of those developments, Hillsdale College Graduate Dean and Professor of Politics Ronald Pestritto told Fox News, "My take on what's going on with the Trump agenda right now is that they're itching to get up to the higher federal court level, including the Supreme Court, to press just this kind of question."
He noted that Trump appears to be deliberately making moves that his administration knows will be blocked by district judges, and said, "Clearly, they know they're going to lose a lot of that at the lower court level. And they want to push them up into the Supreme Court, because they think they might get a reconsideration of it."
The Democrat-aligned plaintiffs "are going to win injunctions very often, first of all, because they know it's easy to judge-shop for sympathetic district judges. And number two, the district judges are basically going to go by the existing Supreme Court precedent," the professor continued.
"And so the real tale of the tape will be when these initial rulings get appealed up the appellate ladder and ultimately up to the Supreme Court," Pestritto added, "which certainly has many justices who I think understand Article II of the Constitution properly and may be open to a reconsideration of Humphrey’s."
Dellinger case could provide opportunity to overturn Humphrey's Executor
President Trump may soon get exactly what he has aimed for, Courthouse News reported, as one such case involving the court-blocked firing of an executive branch official -- Hampton Dellinger, the head of the Office of Special Counsel that works with federal whistleblowers -- has now been preliminarily appealed up to the Supreme Court.
Obama-appointed D.C. District Judge Amy Berman Jackson ruled in favor of Dellinger and issued a temporary restraining order blocking his removal, an order the D.C. appellate court refused to overturn, which prompted a Sunday filing at the Supreme Court with a request for emergency intervention to vacate the TRO.
Trump's Justice Department said in the filing that the justices "should not allow lower courts to seize executive power by dictating to the President how long he must continue employing an agency head against his will."
Trump emergency appeal filed, Dellinger ordered to respond
Courthouse News noted that since the appeal was filed on the emergency docket, however, the only thing at stake right now is Judge Jackson's order blocking the removal and replacement of Dellinger, and likely won't provide the justices with an opportunity to overturn the Humphrey's Executor precedent -- at least, not yet.
That day may come quicker than some might expect, though, as SCOTUSblog reported that the Supreme Court indicated its interest in taking up President Trump's appeal in a timely fashion.
The court did not grant Trump's request for an administrative stay to block and reverse the lower court's TRO, but did give Dellinger until Wednesday to file a response, which strongly suggests that the legal dispute will be at least initially addressed soon.