As the battles over federal funding freezes and Elon Musk’s access to data at major executive branch agencies dominate the headlines, the Trump administration has been quietly firing scores of commissioners, directors and other officials heading lesser-known but critical government agencies.
There’s no question that Donald Trump has relished proclaiming, “You’re fired!” since his days starring on “The Apprentice.” But never before has that phrase engendered a serious constitutional issue. Until now, that is.
During his second week in office, the president fired the Democratic members and general counsels of two multimember agencies that help resolve labor and employment discrimination disputes: the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission. Critics charged these were unlawful firings since the statutes that govern many independent agencies and commissioners require that they not only have multiple members with staggered, lengthy terms but also have members selected by both major parties.
Some of those dismissed aren’t taking their purported firings lying down.
Then, last week, Trump removed the chair of the Federal Elections Commission, which oversees the enforcement of campaign finance laws and is another multimember body with staggered terms. He also fired the head of the Consumer Financial Protection Bureau (CFPB), which was created to exert greater federal oversight over mortgages, credit cards, car loans and other consumer financial offerings.
And in one of his latest moves, he terminated two people who help ensure the federal government operates ethically and transparently. Specifically, he fired the head of the Office of Government Ethics, which monitors federal officials’ conflicts of interest and publishes their detailed financial disclosures, and the head of the Office of the Special Counsel.
Some of those dismissed aren’t taking their purported firings lying down. Gwynne Wilcox, for example, has already filed a lawsuit to be reinstated to her role on the NLRB; meanwhile, Ellen Weintraub, whom Trump removed as chair of the FEC, told Rachel Maddow on her Feb. 7 broadcast that she was considering all of her options.
So far, only one dismissed official has won a reprieve, albeit a temporary one: Hampton Dellinger, the special counsel of the Office of the Special Counsel.
Dellinger is not to be confused with Jack Smith, Robert Mueller or other special counsels who have been appointed by a U.S. attorney general. Rather, the OSC is a permanent federal agency best known for its role in protecting government whistleblowers and enforcing the Hatch Act, which prohibits political activity, including fundraising, by certain federal officials and/or on federal grounds.
And as is especially relevant now, as the legal fight over the administration’s so-called buyout program escalates, the OSC also has a more significant role: overseeing enforcement of the Civil Service Reform Act (CSRA). Essentially, the OSC is charged with investigating, resolving and even sometimes elevating disputes in lieu of or before a federal employee seeks relief independently through the Merit System Protection Board.
And that function has a lot to do with the so-called buyout program. In particular, the Justice Department’s principal argument against a court’s temporarily blocking the program is that federal district courts do not even have jurisdiction over the plaintiffs’ claims. Why? Because the CSRA establishes a “comprehensive remedial scheme” for federal employees to raise and resolve employment disputes. And to the extent that a head of OSC disagrees with that position — e.g., that unions or employees can dispute the legality of the buyout program only by starting with administrative channels — it’s easy to see how he could become a target for this White House. Basically, if left in place at the OSC, Dellinger could undermine the DOJ — and Trump — by disputing their insistence that challenges to the buyout program can’t be heard in courts.
Dellinger, for his part, was confirmed to his position in February 2024 and his term is supposed to last until 2029. So he has sued to be restored to his position immediately, flagging that the statute establishing the OSC allows for his removal by the president “only for inefficiency, neglect of duty, or malfeasance in office.” Whether this Supreme Court would uphold the protections against removing the special counsel is unclear. On Monday night, a federal judge in Washington, D.C., issued an administrative stay, or pause, on Dellinger’s firing until midnight on Feb. 13. Tellingly, the DOJ has already filed a notice of appeal and is seeking an emergency stay from a federal appeals court, arguing that the judge’s purportedly modest order is instead “an extraordinary — indeed, unprecedented — intrusion into the President’s authority to exercise all of the executive power of the United States.” That appeals court has ordered both sides to submit additional briefing by noon on Wednesday. Whether this Supreme Court would uphold the protections against removing the special counsel is unclear. On one hand, a 2020 opinion ruled that the structure of the CFPB was unconstitutional because there was a single director who was removable by the president only for cause. As a result, a president can now remove the CFPB director for any reason, as Trump already has done. In that opinion, however, Chief Justice John Roberts discussed whether the OSC is analogous, observing that “the OSC exercises only limited jurisdiction to enforce certain rules governing Federal Government employers and employees” and “does not bind private parties at all or wield regulatory authority comparable to the CFPB.” On the other hand, in holding just a year later that the Federal Housing Finance Authority’s structure — also a single director, removable for cause — intrudes on the president’s constitutional authority, Justice Neil Gorsuch explained that “the nature and breadth of an agency’s authority is not dispositive in determining whether Congress may limit the President’s power to remove its head.” Gorsuch continued, in language echoed these days by the White House press secretary and other senior administration officials, that the president’s removal power is necessary for him to “maintain a degree of control over the subordinates he needs to carry out his duties … and works to ensure that these subordinates serve the people effectively and in accordance with the policies that the people presumably elected the President to promote.” So for now, Dellinger is back at the Office of the Special Counsel, but given Trump’s focus on firing whomever, whenever and however to consolidate executive control, Dellinger’s battle for his job could become one of the first and most telling tests of where this Supreme Court might impose limits — and even if it does, how the Trump administration will react.
Lisa Rubin is MS NOW's senior legal reporter and a former litigator.
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