Florida AG Uthmeier Files Brief at Supreme Court in Support of Trump's Executive Power Use

Florida Attorney General James Uthmeier has filed an amicus curiae brief in support of President Donald Trump’s authority to remove federal officials from office. 

President Trump recently fired Special Counsel Hampton Dellinger, the head of the Office of the Special Counsel (OSC), who subsequently sued to challenge Trump’s authority to remove him. 

Attorney General Uthmeier, along with 19 other states, filed a brief supporting President Trump’s ability to exercise his authority under Article II of the U.S. Constitution to remove and replace Special Counsel Dellinger.

“Because he is a principal officer exercising executive power on behalf of the President, the Constitution requires that he be removable at the will of the President,” argued Attorney General Uthmeier. 

The OSC was created in 1978 to investigate misconduct by high-ranking federal officials as part of an effort to reform the federal government and prevent abuses of power. 

The legality of the OSC has been a contentious legal issue and produced landmark decisions from the Supreme Court such as Morrison v Olson.

In Morrison, the Supreme Court decided the law establishing the OSC, which limits the President’s authority to remove special counsels, was constitutional.

However, conservative legal scholars have long disputed such a ruling and pointed to former Supreme Court Justice Antonin Scalia’s opposing arguments in his historic dissent.

Some of Justice Scalia’s reasons for opposing the OSC were that it infringed on the president's power to exercise executive power and that it was unconstitutional because it allowed judges to appoint an independent counsel.

Scalia also argued that the OSC was unconstitutional because it restricted the president's ability to fire the independent counsel. 

The Supreme Court is now in a position to potentially review Morrison, which it could overrule in a historical move. 

“If this Court ever has occasion to revisit Morrison, it should heed Justice Scalia’s dissent and overrule that decision,” argued Uthemeir. 

However, the legal question over Dellinger’s firing may be narrow enough to enable the Supreme Court to evade having to rule on the constitutionality of the OSC altogether.