D.C. Circuit Issues Opinion Explaining Stay that Allowed for Special Counsel Dellinger’s Removal
Former Special Counsel Hampton Dellinger may have dropped his lawsuit challenging his removal by President Trump, but that did not stop the U.S. Court of Appeals for the D.C. Circuit from issuing a belated opinion explaining why it granted the Trump Administration’s emergency motion for a stay pending appeal in Dellinger v. Bessent.
The per curiam opinion on behalf of Judges Henderson, Millett, and Walker explains that the panel concluded that the Trump Administration was likely to prevail on the merits. This is because, as a single-headed agency, it is hard to distinguish the Office of Special Counsel from the Consumer Financial Protection Bureau and the Federal Housing Finance Administration, and thus hard to see how Dellinger could prevail under Seila Law v. CFPB and Collins v. Yellen.Â
From the opinion:
“[T]he Constitution prohibits even ‘modest restrictions’ on the President’s power to remove the head of an agency with a single top officer.” Collins v. Yellen, 594 U.S. 220, 256 (2021) (quoting Seila Law LLC v. CFPB, 591 U.S.197, 228 (2020)); see also Trump v. United States, 603 U.S. 593, 621 (2024) (“[T]he President’s power to remove ‘executive officers of the United States whom he has appointed’ may not be regulated by Congress or reviewed by the courts.”) (quoting Myers v. United States, 272 U.S. 52,106, 176 (1926)). Granted, Seila Law noted the more “limited jurisdiction” of OSC as compared to the agency at issue there, Seila Law, 591 U.S. at 221, and Collins did “not comment on the constitutionality of any removal restriction that applies to [the Special Counsel],” 594 U.S. at 256n.21. However, the government has shown that the logic of those cases is substantially likely to extend to the Special Counsel.
That is so because the Court in Collins clarified that “[c]ourts are not well-suited to weigh the relative importance of the regulatory and enforcement authority of disparate agencies” and so it did “not think that the constitutionality of removal restrictions hinges on such an inquiry.” Id. at253. This case illustrates the point. Compare Dellinger II, 2025 WL 559669, at
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