President's Firings Raise Legal and Political Questions

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. 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.

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.

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.