May: Special Counsel Removal Battle Could Affect FCC

commissioners, said Free State Foundation President Randolph May in a blog post Tuesday. Acting Solicitor General Sarah Harris asked SCOTUS to vacate a temporary restraining order barring the removal of Office of Special Counsel leader Hampton Dellinger as “an unprecedented assault on the separation of powers.” Blocking the president from removing presidential appointees under his authority “inflicts the gravest of injuries on the Executive Branch and the separation of powers,” said the emergency petition. In it, Harris restated DOJ's argument (see 2502140047) that tenure protections for members of multimember commissions are unconstitutional. “If this view ultimately prevails in the Supreme Court, a president's authority to remove an FCC commissioner without providing any reason would be assured,” May said. The court could instead rule that Dellinger could be ousted based on language in the statute that allows the head of the Office of Special Counsel to be removed for inefficiency, malfeasance or neglect of duty, he added. Other agencies targeted in a recent letter to Congress from the Solicitor General -- such as the FTC and the National Labor Relations Board -- are based on statutes with similar language, but that language isn’t present in the Communications Act. That could be “determinative” if a president ever tries to remove an FCC commissioner, May said. He included a disclaimer at the end of his post clarifying that he isn't advocating for White House removal of FCC commissioners.