It didn't take long for this new reality-TV series to launch. And from the looks of things, it may have a long and popular run, too.

Democrats desperate to slow down Donald Trump's demolition of the bureaucratic state have launched a new version of lawfare, forcing Trump into court at every step. Trump appears to have learned from years of experience in Democrat lawfare, however, and is choosing the timing of his battles well. The first case that Trump has taken to the Supreme Court offers him a good chance of success -- and perhaps a precedent-setting decision that will moot many of the other challenges in the pipeline. 

Trump removed the existing head of the Office of Special Counsel immediately on taking office, prompting a lawsuit to reverse Trump's actions. Oddly, the district court agreed and issued a TRO putting Hampton Dellinger back on the job, and the DC CIrcuit Court of Appeals declined to intervene. That allowed the White House to petition the Supreme Court:

The Trump administration is asking the U.S. Supreme Court to let it fire the head of an independent watchdog agency that investigates federal workers' whistleblower reports.

Why it matters: The case concerning the removal of Hampton Dellinger as head of the Office of Special Counsel is the first of what's expected to be several appeals to the high court since President Trump regained office and moved to fire government workers in a federal workforce overhaul. ...

Driving the news: Acting Solicitor General Sarah Harris said in the filing that a federal judge's order temporarily blocking Dellinger's dismissal, which the U.S. Circuit Court of Appeals for the D.C. Circuit late Saturday declined to overrule, marks an "unprecedented assault on the separation of powers."

• Harris added: "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."

As a test case for the DOGE-driven deconstruction of the bureaucratic state, Trump couldn't have asked for a better set-up. Other suits enjoining terminations have complications due to either federal employment procedures for civil servants or statutory protections, such as the abrupt terminations of more than a dozen Inspectors General. Other cases will also necessarily involve congressional authority at agencies that have both regulatory and enforcement power. Trump and his team have attempted to get around those by giving paid leave rather than outright terminations, but courts may decide to grant the plaintiffs standing nonetheless.

However, the Office of Special Counsel does not have any links to legislative power or authority. It exists fully within executive authority, and its agency head is a political appointment that serves at the pleasure of the president. Harris' filing at the Supreme Court notes the bizarre intrusion on pure Article II authority this represents:

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. Yet the district court remarkably found no irreparable harm to the President if he is judicially barred from exercising exclusive and preclusive powers of the Presidency for at least 16 days, and perhaps for a month. See Federal Rule of Civil Procedure 65(b)(2) (authorizing courts to extend TROs so that they last up to 28 days). And, when the United States sought a stay or, alternatively, mandamus, the D.C. Circuit issued a 27-page decision denying relief late on Saturday night, over Judge Katsas’s dissent. App., infra, 33a-59a. 

The United States now seeks this Court’s intervention because these judicial rulings irreparably harm the Presidency by curtailing the President’s ability to manage the Executive Branch in the earliest days of his Administration. As Judge Katsas observed, the TRO—which operates as an injunction against the President and requires him to reinstate an agency head whom he removed—is “virtually unheard of,” id. at 54a, and “usurped a core Article II power of the President,” id. at 53a. “[C]ourts may not enjoin the President regarding the performance of his official acts, regarding removal or otherwise.” Id. at 54a. Even when courts do not enjoin the President himself, this Court has long held that a court “will not, by injunction, restrain an executive officer from making a wrongful removal of a subordinate appointee, nor restrain the appointment of another.” White v. Berry, 171 U.S. 366, 377 (1898). Thus, challenges to removals have historically been litigated through suits for back pay, not reinstatement. E.g., Humphrey’s Executor v. United States, 295 U.S. 602, 618 (1935); Myers v. United States, 272 U.S. 52, 106 (1926). 

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.

Exactly. When wrongful terminations in the context of presidential actions and executive-branch appointments are litigated, courts have never forced a president to rehire someone with whom a president does not want to work. This is a strange order from the district court, especially given that the president's executive authority is strongest in the context of purely executive subordinate agencies.

However, Harris then urges the Supreme Court to take the opportunity to end this kind of lawfare more broadly:

The district court’s order exemplifies a broader, weeks-long trend in which plaintiffs challenging President Trump’s initiatives have persuaded district courts to issue TROs that intrude upon a host of the President’s Article II powers. A district court in New York issued an ex parte TRO requiring that access to certain Treasury Department data be limited to “civil servants” and be denied to “political appointees.” New York v. Trump, No. 25-cv-1144, 2025 WL 435411, at *1 (S.D.N.Y. Feb. 8, 2025). A district court in the District of Columbia issued a worldwide TRO that prohibited the government from “suspending, pausing, or otherwise preventing the obligation or disbursement” of any “federal foreign assistance award that was in existence as of January 19, 2025.” AIDS Vaccine Advocacy Coalition v. United States Department of State, No. 25-cv-402, 2025 WL 485324, at *7 (D.D.C. 2025). Many other district courts have issued universal TROs that sweep far beyond the parties to those cases and effectively enjoin the President’s Executive Orders even before agencies have decided how to implement them.1 

The United States thus respectfully requests that this Court vacate the district court’s order and end the practice whereby courts seize Article II powers for two weeks, yet disclaim the availability of any appellate review in the meantime. This Court should not allow the judiciary to govern by temporary restraining order and supplant the political accountability the Constitution ordains.

Will the Supreme Court take this opportunity to pre-empt several long seasons of Lawfare and Disorder: TRO? Probably not; the court will likely prefer to take these cases as they come and review them in the context of presidential authority in each situation. But they could decide to do so, and this case offers a good set-up for Trump and his administration to force the broader question onto the Supreme Court: Who is actually in charge of the executive branch -- the man elected president, or unelected judges and bureaucrats?

At some point, the Supreme Court will have to answer that question. Perhaps it's best for them and everyone else to rip off that Band-Aid now. 

The Supreme Court is off today for the federal holiday (Presidents Day), so we may not see action until tomorrow on this petition. For the curious, the DC Circuit comes under the supervision of Chief Justice John Roberts, who will get the first look at this emergency petition. However, he's likely to refer it to the full court for a decision on cert and emergency action. Stay tuned.