Well, well, well. Seems even the DC Circuit Court of Appeal has noticed that the Article III branch doesn’t have authority to tell the Article II branch who to hire or fire. 

In a ruling handed down late yesterday, a three-judge panel unanimously vacated an injunction ordered by a circuit-court judge that ordered Donald Trump to rehire Special Counsel Hampton Dellinger. Judge Amy Berman Jackson had enjoined the president from terminating Dellinger, appointed by Joe Biden a year ago, while his lawsuit challenging Trump’s authority to fire him and many other executive-branch officials remained pending. The Supreme Court declined to intervene, noting that a hearing on the merits would come soon enough to avoid any irreparable harm to Trump’s authority — at which point Dellinger began pushing back on Trump’s other efforts to reduce the federal workforce. 

The appellate court reconsidered after briefs from Trump’s attorneys and several amicus submissions:

A federal appeals court is allowing President Donald Trump to fire an official who investigates complaints from the federal workforce, lifting a lower court’s injunction that barred Trump from removing Special Counsel Hampton Dellinger.

The Justice Department argued that Dellinger’s continued work as a federal ethics watchdog was undermining Trump’s agenda. In particular, Dellinger has spearheaded a recent effort to reinstate thousands of probationary workers who were fired amid Trump’s overhaul of the federal bureaucracy.

Dellinger, an appointee of President Joe Biden, was confirmed to a five-year term last year. Trump tried to fire him Feb. 7, despite a federal law that limits the president’s ability to remove the special counsel. Until now, initial court rulings had allowed Dellinger to stay on the job.

One has to wonder whether Dellinger’s interference with the effort to dismiss probies changed some minds at the appellate circuit. Both the appeals court and the Supreme Court left Dellinger in place on the assumption that Dellinger would refrain from taking any action that could be construed as insubordinate while the lawsuit got a hearing on the merits of whether Trump went beyond his authority. That blew up in everyone’s face, and one has to imagine that Trump had at least four votes for cert if he challenged a loss at this level.

One has to wonder whether the three-judge panel guessed the same thing. 

As Politico notes, the per curiam order doesn’t offer an explanation of their reasoning. (The order promised that an opinion would follow “in due course.”) The panel did, however, offer an expedited schedule for a hearing on the merits of the appeal. It still won’t take place soon, however. It will be more than a month before all of the motions are due for submission. Only after that is the clerk ordered to find a date for oral arguments “in this term,” which only means that a final assessment of Dellinger’s terminaton will come before July 1 — maybe sooner, but not guaranteed.

And that means that reinstatement isn’t likely to be an option. Trump will nominate a new Special Counsel to run the Office of Special Counsel (not the same kind of special counsel as Jack Smith or Robert Mueller). The Senate will have to confirm the nominee, but they can’t force Trump to appoint Dellinger again. To the extent that Dellinger is owed relief, it would be monetary in nature, not a forced return to the job — and even that seems unlikely, given the Separation of Powers Doctrine and the president’s innate authority to hire and fire political appointees, and likely everyone else in the executive branch.  

Dellinger could appeal this decision to the Supreme Court, of course, and probably will. However, his demonstration of ‘irreparable harm’ in just a few days would likely produce a much different result there than the benefit-of-doubt treatment Dellinger got the last time. And at least four justices are now champing at the bit to make clear that federal judges don’t have the jurisdiction to make Article II personnel decisions. FAFO may not be a legal doctrine, but it does make for a compelling explanation.