President Trump is heading to the Supreme Court in the first such appeal of the concerted lawfare assault on his second-term agenda. The issue is not any of the cases involving billions of dollars or thousands of jobs but rather the firing of Hampton Dellinger, head of the Office of Special Counsel.

On February 7, President Trump fired Democrat apparatchik Hampton Dellinger along with most of the remaining agency inspectors general. Dellinger sued for reinstatement. By statute, he is appointed for a five-year term and can only be removed by the president for "inefficiency, neglect of duty, or malfeasance in office." The case went to Judge Amy Berman Jackson, who ordered Dellinger reinstated.

In a footnote to her written order, the judge castigated the White House lawyers for claiming in her court that reinstating Dellinger would cause too much disruption in the special counsel's office.

"Defendants imply that it would be too disruptive to the business of the agency to have Special Counsel Dellinger resume his work. But any disruption to the work of the agency was occasioned by the White House. It's as if the bull in the china shop looked back over his shoulder and said, 'What a mess!'"

As with the case with nearly all judges in the DC Circuit, the antipathy they have developed toward President Trump because of his pardon of the men and women they persecuted during the January 6 investigation prevents them from treating any case involving Trump with any degree of rationality.

Dellinger vs. Bessent Berman Order 1 by streiff on Scribd

Trump's legal team immediately appealed to the DC Circuit and pretty much got the response they probably expected.

The appeals court judges who ruled Saturday split in line with the partisan affiliation of the presidents who appointed them, with Biden’s appointees Florence Pan and J. Michelle Childs voting to deny relief to the president at this point and Trump appointee Greg Katsas dissenting.

Pan and Childs justified their decision largely on procedural grounds, noting that U.S. District Court Judge Amy Berman Jackson’s current order restoring Dellinger to his position runs only through Feb. 26 and that such short-term orders are ordinarily not subject to appeals court review.

“The relief requested by the government is a sharp departure from established procedures that balance and protect the interests of litigants, and ensure the orderly consideration of cases before the district court and this court,” Pan and Childs wrote, adding that the appeals court stepping in now “would throw a monkey wrench into the district court proceedings.”

And, in an apparent reference to a flood of lawsuits filed in recent days challenging Trump executive orders and other actions, the majority said lifting the TRO at this stage of the litigation was certain to lead to “a deluge” of similar requests in other cases.

However, Katsas — who served as a top attorney in the White House Counsel’s Office during Trump’s first term — said the implications of Jackson’s directive for the powers of the presidency were so momentous that the appeals court should act immediately.

Dellinger vs. Bessent DC Circuit Order 1 by streiff on Scribd

Though they lost, they got a solid dissent to work with and went to the Supreme Court.

Their arguments are that the president has absolute authority to remove officials at will and that every time the Supreme Court has heard a case similar to Dellinger's, they have agreed.

In the last five years, this Court has twice held that restrictions on the President’s authority to remove principal officers who serve as the soleheads of executive agencies violate Article II—in those cases, the single heads of the Consumer Financial Protection Bureau and the Federal Housing Finance Agency. See Seila Law LLC v. CFPB , 591 U.S. 197 (2020);Collins v. Yellen, 594 U.S. 220 (2021). Whatever the agency, for the President to discharge his constitutional duty to supervise those who exercise executive power on his behalf, the President can “remove the head of an agency with a single top officer” at will. Collins 594 U.S. at 256. On that basis, President Biden in 2021 fired the single head of the Social Security Administration without cause.

It goes on to say:

This Court 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. “Where a lower court allegedly impinges on the President’s core Article II pow-ers, immediate appellate review should be generally available.”

In summary, the motion says:

As a general matter, the Constitution “scrupulously avoids concen-trating power in the hands of any single individual” save for the President, who is“the most democratic and politically accountable official in Government.” Id. at 223-224. Single agency heads thus must be accountable to the President through at-will removal. There are only four single agency heads upon whom Congress has sought to confer tenure protection: the Directors of the Consumer Financial Protection Bureau (CFPB) and Federal Housing Finance Agency (FHFA), the Commissioner of Social Security, and the Special Counsel here. The former three are undisputedly subject to at-will removal under Article II. This Court’s precedents foreclose any special exception for the Special Counsel.

They further argue that Dellinger could sue for lost wages, but no court has the authority to order him reinstated. They reach back to the First Congress for support, 

Indeed, many members of the First Congress argued against requiring the Senate’s advice and consent for removals precisely because of the risk that such a procedure would require the President to retain someone he had sought to remove.

Dellinger vs. Bessent Vacatur Application by streiff on Scribd

On the whole, keeping in mind IANAL, I think that this appeal stands a very good chance of succeeding. In fact, one could almost think that the Trump legal team was counting on the district court and appeals court ruling to get the case of the Special Counsel before the Supreme Court.