A closer look at Dellinger v. Bessent, a case key to understanding Trump’s dictatorial aspirations
This is a longer post than my usual, due to the significance and intricacy of its topic. On March 1, 2025, Judge Amy Berman Jackson of the District Court of the District of Columbia issued a critically important opinion. Jackson ruled on the merits of a Trump administration challenge to the statute creating the Office of Special Counsel (OSC). She decided that the statute is constitutional and that Trump's effort to fire the head of OSC was wholly unlawful. She issued a permanent injunction requiring executive branch officers and staff to respect the authority of the current Special Counsel, Hampton Dellinger, and to refrain entirely from interfering with his performance of his job. Because Jackson ruled on the merits and granted immediate equitable relief to Dellinger, the case is very likely to swiftly reach the U.S. Supreme Court. The defendants, Trump administration officials, have already given notice that they will appeal Jackson's decision and order to the D.C. Circuit, the intermediate appellate court between the District and Supreme Courts. The litigation and the issues it presents are a major battleground in the war to save U.S. constitutional democracy from dictatorship.
Background: Democracy and modern governmental administration
Note: Skip this section if you have a firm grip on U.S. federal administration and the history and variety of U.S. federal agencies.
Dictatorship - rule by one - is the polar opposite to democracy - rule by all. There’s plenty of evidence that Trump and the Republican Fascist movement are antidemocracy. This past week’s standout data included the shameful treatment of Vladimir Zelensky by Trump and Vance. But it isn’t just Trump’s love of foreign dictators like Putin that proves his affirmative commitment to making the U.S. a dictatorship. Trump and his enablers are trying to give him total control over federal agencies, the bodies that operationalize statutes enacted by Congress, the most representative branch of the U.S. federal government. Congress is far from ideally representative, but it is still the most representative descriptively and the branch of government intended by the Founders to be so. This is why the first section of the U.S. Constitution, Article I, is devoted to structuring the Congress and delineating its powers. Article I, Section 1 reads, in its entirety:
All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
This is the cornerstone of U.S. Constitutional democracy: the most populist, most representative branch of government is the branch that makes the laws. This is what it means to put democracy into practice. No single officer of the U.S. government is permitted to make law, not even the President. The President is charged with executing the law, making sure that what the legislature enacts gets done. In the domestic realm, that's the only role the Constitution assigns the President.
As the United States has grown, the extent and complexity of Congressional legislation has expanded far, far beyond what the Founders contemplated or could have contemplated. Implementing what Congress specifies is not straightforward. Often, it requires ongoing effort to determine how statutes relate to more particular circumstances, expertise to ascertain how to put Congress's will into practice, and many civil servants to get the work done. Over the course of the nation's history, federal agencies have been created to do the job. The earliest agencies are the Cabinet departments, which are purely executive agencies: subdivisions of the executive branch, whose heads report directly to the President. But even though the President is the chief executive of the Cabinet, the Constitution gives Congress - the most democratic, most representative branch - a role in the Cabinet's formation, the power and obligation to advise about and consent to the appointments of the Cabinet secretaries, the executive subdivisions that the President uses to effectuate laws.
Over time, federal legislation has gone beyond the subjects delineated by the early Cabinet subdivisions, e.g. Treasury, State, and Defense (War). This led Congress to create new subdivisions of the federal government to administer the laws it enacts. Modern subdivisions are often referred to as federal agencies. They are legion, beginning with those created in the nineteenth century, such as the Departments of Commerce, Agriculture, and Labor; the Post Office Department; the Interstate Commerce Commission, and the United States Civil Service Commission. The first half of twentieth century saw the creation of the Federal Trade Commission, the National Labor Relations Board, the Securities and Exchange Commission, the Civil Aeronautics Board (predecessor to the Federal Aviation Administration (FAA), the Tennessee Valley Authority, the Federal Deposit Insurance Corporation (FDIC), the Social Security Board (later renamed the Social Security Administration), the Department of Health, Education, and Welfare, the Federal Communications Commission, the Small Business Association, and many others. In the mid-twentieth century, new agencies included the Central Intelligence Agency (CIA), the National Security Council, the Agency for International Development (USAID), the U.S. Information Agency (USIA), and the Environmental Protection Agency (EPA). Post-1970 agencies include the Department of Energy, the Bureau of Alcohol, Tobacco, and Firearms (ATF, housed within Treasury), a separate Department of Education, the Office of Government Ethics, the Federal Election Commission (FEC), and the Consumer Protection Financial Bureau (CPFB).
This nonexhaustive litany reveals the variety of subjects agencies address and the variety of forms agencies take. Most significant for this post's purposes are so-called "independent agencies," those that are not part of a Cabinet department and/or those who Congress enacted to be headed by administrators with fixed terms and who can only be removed for-cause. Independent agencies drive the right wing particularly crazy. Though they are in the business of implementing law, they are not under the exclusive, direct control of the President. Though they often report to Congress, their day-to-day activities, which have enormous impact, are not managed or directed by Congress as a whole or in committee. The independent agencies are largely what right-wingers are talking about when they complain about the administrative state or the deep state.
Making agencies independent shelters them from partisan politics, cronyism, and nepotism. Take NASA, for example. Government sponsored space exploration should not be a matter of partisan goals or largesse: it is a largely scientific matter, best conducted by subject matter experts. Not surprisingly, NASA is an independent agency. So are the Merit Systems Protection Board and the Office of Personnel Management, two successor agencies to the federal Civil Service Commission, which was created to insure competitive, merit-based hiring by all federal agencies. There are real issues of democratic accountability raised by all federal agencies, including the independent ones. But an effective national government cannot operate without implementation and administration and that has always required subdivisions with specialized, expert, and ongoing remits.
Why Trump fired Hampton Dellinger, head of the Office of Special Counsel, and Dellinger v. Bessent, the lawsuit to reinstate Dellinger
The Office of Special Counsel (OSC) is an independent agency: it does not sit within any Cabinet or other executive branch department and its head executive, the Special Counsel, is appointed for a five year term and cannot be removed by the President except for cause. Congress created OSC to help protect the integrity of the federal civil service, to ensure that this workforce operates lawfully and in a nonpartisan fashion. Of OSC's several functions, two stand out in this regard. OSC protects federal employees and applicants from "prohibited personnel practices," especially reprisal for whistleblowing. OSC also enforces the Hatch Act, the federal statute that bars most federal employees from participating in partisan political activities. If a President wants to gut the independence of the federal civil service and try to put that workforce under his direct, exclusive control, destroying OSC is a sensible move for him or her.
On February 7, 2025, the current Special Counsel, Hampton Dellinger, received an email from Sergio N. Gor, Assistant to the President, Director of Presidential Personnel Office, The White House. It read, in its entirety:
On behalf of President Donald J. Trump, I am writing to inform you that your position as Special Counsel of the US Office of Special Counsel is terminated, effective immediately. Thank you for your service[.]
By its plain language, the Congressionally enacted statute establishing the Office of Special Counsel provides that the Special Counsel may be removed by the President only for inefficiency, neglect of duty, or official malfeasance. Here's the relevant statutory section.
(b) The Special Counsel shall be appointed by the President, by and with the advice and consent of the Senate, for a term of 5 years. The Special Counsel may continue to serve beyond the expiration of the term until a successor is appointed and has qualified, except that the Special Counsel may not continue to serve for more than one year after the date on which the term of the Special Counsel would otherwise expire under this subsection. The Special Counsel shall be an attorney who, by demonstrated ability, background, training, or experience, is especially qualified to carry out the functions of the position. A Special Counsel appointed to fill a vacancy occurring before the end of a term of office of the Special Counsel's predecessor serves for the remainder of the term. The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office. The Special Counsel may not hold another office or position in the Government of the United States, except as otherwise provided by law or at the direction of the President.
An email from the White House's Presidential Personnel Office canning the Special Counsel without providing any reason or justification flatly contravenes this law. Whoever in Trump's office caused this email to go out certainly knew this. That person sent the email to pick a fight over the constitutionality of the statute, that is, to pick a fight over the constitutionality of the independence of the Office of Special Counsel.
A President seeking to become a dictator will generally object to any Congressionally created agency over which he or she does not have virtually absolute control. Such a President wants to be able to order the entire federal workforce to do or not do whatever he or wants done or not done. This can only happen if he or she has limitless power to hire and fire, promote and demote. Precisely because the Special Counsel's qualifications, term, and job security are created by Congress, Trump hates it. Furthermore, the OSC exists to bulwark the independent of the federal workforce as a whole, by providing some protection to those who report unlawful agency activity, including illegal agency activity ordered by the President, and by ensuring that the President does not treat federal workers as his or her private partisan political army. The OSC stands in the way of the President treating federal workers however he or she pleases.
What will the Roberts Court do?
Short answer: I don't know. Judge Jackson's opinion in support of her ruling and the permanent injunction she has ordered is sixty-seven pages long. My annotated copy is here. One reason for the length is Jackson's effort to defend the constitutionality of the OSC enacting statute in the face of the Roberts Court's general sympathy to an uber-powerful president and the "unitary executive theory" that calls for it (I wrote a brief bit about this for Slate, here) and the Roberts Court's very specific rulings rejecting the constitutionality of statutes that created independent heads of the Consumer Protection Financial Bureau and the Federal Housing Finance History. Jackson provides arguments for the constitutionality of the Office of Special Counsel statute notwithstanding the Roberts Court's devotion to enhancing the Executive Branch at the expense of Congress and its precedents rejecting the independence of federal agencies. Jackson's reasoning and discussion are meticulous. She has made it easy for the Roberts Court to reject Dellinger's firing and the Trump administration argument against the constitutionality of the OSC statute. But as I have written elsewhere, the Roberts Court is inherently unpredictable because it is not committed to adjudication or law as craft and practice. The Roberts Court ignores Constitutional text and Supreme Court precedents whenever it wants to. Whether it will also ignore Jackson's cogent opinion remains to be seen.