Very Briefly: The Legal Big Picture Re Trump 2.0

It’s important to stipulate up front that there are multiple cases that are serving as vehicles to challenge Trump 2.0’s remake of the Third American Republic. (As an aside, my periodization of US republics runs like this: Independence to Civil War; Civil War to New Deal; New Deal to Trump.) These various cases present different factual situations, depending on the Executive Orders that are being challenged. However, the thing to remember is the incrementalism of the Roberts Court. I’ve maintained that, if you can get beyond this cautious, incremental approach, the Roberts jurisprudence has been pretty consistently federalist and even originalist.

Last night there was an opinion issued in the Dellinger case, which is an attempt to force Trump to rehire the guy who was fired. Margot Cleveland wrote about this last night, and you can read about it here. Her thread is more nuts and bolts. Shipwreckedcrew has used this development to offer a bit of a bigger picture view, focusing on the Roberts incrementalism—but also stressing that this confrontation is exactly what Trump 2.0 wants. A constitutional confrontation. The Dellinger case, for precedential reasons, may not lead to that Big Picture confrontation, but it’s a step in the right direction. There are other cases, however, that could move Roberts past incrementalism—which, I remind readers, he has done in the past.

Shipwreckedcrew @shipwreckedcrew

Judge Amy Berman Jackson issued a quite predictable ruling last night that Hampton Delliger's position as head of the Office of Special Counsel is protected from removal by the language in the statue saying he can only be removed "for cause."

I say "predictable" because she had written a 27 page opinion in granting the TRO keeping him in place after he was fired by Pres. Trump that came to the same conclusion.

She largely relied on the 1935 Supreme Court decision in Humphrey's Executor v. United States, a case I've been writing for three weeks.

THIS IS EXACTLY WHAT THE TRUMP ADMINISTRATION WANTED!!!!

Anyone suggesting this is a disaster doesn't understand the legal process.

Humphrey's Executor is a badly decided case. It is 90 years old and it has been used by Congress through the decades to infringe on Article II powers of the Executive.

But, as a Supreme Court decision, it is binding on lower courts until the Supreme Court itself decides otherwise.

The Court took an interim step in that direction in 2020 in the case of Seila Law v. CFPB -- but it left Humphrey's Executor in place because it did not need to say Humphrey's Executor was bad law in order to decide Seila Law, so it did not.

That has been the way of the Roberts Court -- decide the case pending without doing more if that is possible.

It would probably over-rule Judge Jackson and affirm Dellinger's firing without overruling Humphrey's Executor -- it could do the same thing it did in Seila Law.

BUT, there is a second case that is not getting as much attention because it is trailing along in the wake of the Dellinger case.

The combination of the two cases together likely puts the Court on the path to finally overruling Humphrey's Executor.

Coming up later today on my Subway page.

11:28 AM · Mar 2, 2025

So these rulings that, on the surface look like defeats, are actually wins for Trump. The reason these are wins, is because they move the issues closer to definitive SCOTUS decisions that will clear the field of play for the rest of Trump 2.0.