In its first appeal of its second term to reach the Supreme Court, the Trump administration is arguing that the judiciary is attempting “to seize executive power” as courts have blocked the president from firing certain federal employees.
Experts say the high court will likely be sympathetic to that argument and point to the ferocious dissent from a lower court judge, Trump appointee Greg Katsas, which they said laid the groundwork for Trump’s potential victory.
“I am of the strong opinion that the devastating dissent written by Judge Katsas will strongly influence the current justices on the Supreme Court,” Hans von Spakovsky, Senior Legal Fellow at the Heritage Foundation, told Fox News Digital.
The Justice Department filed an appeal to the Supreme Court in the case involving the firing of Hampton Dellinger, the head of the Special Counsel Office. Dellinger was fired from his role this month and shortly thereafter filed suit against the Trump administration, arguing that his termination was illegal and was “in direct conflict with nearly a century of precedent” delineating proper removal of independent agency officials.
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A lower court judge initially issued an administrative stay that reinstated Dellinger to his position, to which he was appointed by former President Joe Biden. The U.S. Court of Appeals for the District of Columbia Circuit declined to block that decision.
The lower court then issued a temporary restraining order that reinstated Dellinger for 14 days. The DOJ appealed to the D.C. Circuit Court of Appeals, which declined to lift the order on Sunday.
The panel, which voted 2-1, was split along party lines, with Katsas dissenting.
The Trump-appointed judge wrote that the order “warrants immediate appellate review” as the issue at hand “directs the President to recognize and work with an agency head whom he has already removed.”
“Where a lower court allegedly impinges on the President’s core Article II powers, immediate appellate review should be generally available,” Katsas wrote.
Katsas said the order “controlling how [the president] performs his official duties” is “virtually unheard of.” Katsas also wrote that the order “usurped a core Article II power of the President.”
In its appeal to the Supreme Court, the DOJ said the case “involves an unprecedented assault on the separation of powers that warrants immediate relief.”
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“Until now, as far as we are aware, no court in American history has wielded an injunction to force the President to retain an agency head whom the President believes should not be entrusted with executive power and to prevent the President from relying on his preferred replacement,” the appeal reads.
The Trump administration referred back to Katsas’ dissent numerous times in its appeal, arguing that the Court cannot allow courts “to seize executive power by dictating to the President how long he must continue employing an agency head against his will.”
Von Spakovsky called the appellate court’s decision declining to lift the order “really outrageous and an unprecedented abuse of their judicial authority.”
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“The Supreme Court itself has said that the president has the unrestricted authority to remove the single head of an executive agency, as Katsas points out, and yet these courts are thumbing their noses at the Supreme Court and blithely violating those precedents,” von Spakovsky said.
Likewise, constitutional law attorney and Fox News Contributor Jonathan Turley said he expects the justices to “resonate” with the arguments made in Katsas’ dissent.
“While the panel ruled on a technical barrier to the review of a temporary restraining order, the dissent correctly points out that this is an extraordinary claim of authority by the district court,” Turley said.
Von Spakovsky called the appellate court’s decision “one of the worst examples of judicial activism we have seen” and said “it needs to be immediately and decisively stopped by the Supreme Court.”
He continued on to advise that the court “should forgo its usual politeness and collegiality and severely criticize the district court judge for her contemptuous behavior as well as the appellate court judges for not stopping it.”
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