Legal briefs
Separation of powers
There is something in the federal government called the Office of Special Counsel, which was created by Congress. (Do not confuse this with Special Counsels appointed by the Department of Justice. That’s a different thing). The Office is charged with overseeing the enforcement of various statutes that apply to the federal workforce, including whistleblower protections. The head of the Office of Special Counsel is called Special Counsel for the Office of Special Counsel. I know, right? Anyway, a few weeks ago, President Trump fired that guy.
The guy’s name is Hampton Dellinger. After his firing, he sued the Administration claiming that Trump can’t fire him because the statute creating the office says special counsels can only be fired for cause.
Now, it gets a little complicated from here but hang with me. The U.S. District Court for the D.C. Circuit agreed with Dellinger and issued a temporary injunction requiring Dellinger to be reinstated until the case could be heard on the merits. In response to the injunction, the Trump administration sought review from the U.S. Supreme Court calling the injunction “an unprecedented assault on the separation of powers.” The Supreme Court decided to hold the question in abeyance until a hearing on the merits could be held at the District Court level. The D.C. District Court did then hear the merits of the case and found in favor of Dellinger.
The Trump Administration appealed that decision to the U.S. Court of Appeals. The Court of Appeals overturned the District Court’s temporary order requiring the Administration to keep Dellinger employed. So, Dellinger was officially out of a job as of March 1, 2025. The Court of Appeals scheduled its own hearing on the merits for April 11, 2025. Then, on March 6, before the case could be heard on the merits at the Court of Appeals, Dellinger dismissed his case. In a statement, he said that he did not believe he could prevail. End of complicated procedural maneuvers. In the unlikely chance you are itching for more, you can go here.
Because Dellinger dismissed his case, we are deprived of a U.S. Supreme Court opinion on the issue, for now at least. I agree with Dellinger, though, that the Supreme Court will, if given the chance, almost certainly find that the President has authority to fire the Special Counsel. Any other interpretation cannot be squared with the separation of powers inherent in the U.S. Constitution. If Trump can’t fire Dellinger, then that means Dellinger, an appointed bureaucrat, is more powerful than Trump, the President. This cannot be the case because nobody voted for Dellinger.
Crime
Recent NYC crime data shows that since 2018 there has been a sharp increase in criminal reoffending. Felony assaults by repeat offenders have increased nearly 150%. Burglary commissions by offenders with prior burglary offenses are up over 61%. Robberies by people with prior robbery cases are up over 83%. And grand larceny by previous grand larceny offenders is up over 71%. What happened since 2018? New York criminal justice reform legislation took effect in January 2019 that prohibited judges from considering dangerousness in bail determinations and mandated pre-trial release in most instances. Released offenders are just committing the same crimes over and over again. NYC police commissioner, Jessica Tisch, said, “And we know why. The key driving factor is the revolving door of our criminal justice system..” Read more here.
More crime
A recent report from Chicago police agencies shows that the city’s crime rate is at a five-year high. Aggravated assaults have increased 5.3% over the last twelve months. Just 1 in 6 of these assaults resulted in an arrest. Of the 29,677 reported incidents of violent crime in Chicago over the past year, only 3,862 have resulted in arrest. Of the arrests, only a small percentage wind up with felony convictions. Over 66% of Chicago voters disapprove of the city’s handling of crime. See here for more.
Free speech
Following the protests on the Columbia University campus that subjected Jewish students to intimidation and physical abuse, the university’s donations are down roughly thirty percent. See here. This market correction, if you will, is good news.
Other
The Gallup organization recently released its recurring poll on Americans’ confidence in institutions. Of the seventeen institutions included, the American people have the most confidence in small businesses and the least confidence in Congress. They have increasing trust in the police, which ranks third trusted among the seventeen. They have decreasing confidence in television news, which ranks second to last. The criminal justice system as a whole ranks well below the police with only 21% of Americans expressing “a great deal” or “quite a lot” of confidence in the system. We clearly have some work to do. You can read more here.
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I must disagree. I do not believe the plain text of the constitution grants the president the power to remove the Special Council, and if anything violated the separation of powers it was the removal by the president. The only Removal Clause contained within the constitution is removal through impeachment and that power rests with the legislature.
Myers v. The United States discussed this, and I believe reached the wrong conclusion. The court rested most heavily on the actions of the First Congress, who faced this issue when executive departments were created with the words “to be removed by the president” included in the legislature. In the first congress, the house voted 29-22 and the senate voted 10-10 requiring the vice president to vote yes to break the tie to affirm the bill. I believe the court gave too much weight to the first congress and was improper in ignoring the plain text of the constitution. As I previously said, the removal clause does not grant the president the power to remove officers and so it could even be argued that the actions of the first congress were unconstitutional. While some may argue it violates the separation of powers, a better view is that the limit on removal set by the removal clause is a limit on executive power intentionally placed to prevent abuse by the President.
The courts in Myers v. United States disagreed with this saying that such fears were the fundamental misconception that the President's attitude in his exercise of power is one of opposition to the people. While possibly, that could be true around the time of the ratification in more modern times it is obvious that many political actors who have carried the title President of the United States have been more than willing to push the limits of their power for political gain and furthering their own political agenda. This may seem normal, but this was never the intent of the President. Congress was always intended to be the chief policymaker with the President the impartial leadership who executed and enforced the policies of congress.
All of that aside, I stand on my original argument that the plain text of the Constitution only allows removal of officers through impeachment. No where in the constitution does it mention removal of officials for non-criminal acts, or disobedience to the president and indicates these were not of great enough importance to the Framers to include within the constitutional text and I believe show’s it is not permissible under the Constitution.