Sean Spicer
Former Trump White House spokesman Sean Spicer was booted off “Dancing With the Stars” in 2019 after his moves to Destiny’s Child’s “Bills Bills Bills” earned just a 26 from the judges. But he managed to do even worse in federal court this weekend, when US District Judge Dabney Friedrich refused to grant a preliminary injunction ordering the US Naval Academy to allow him and his fellow plaintiff, former Office of Management and Budget Director Russel Vought, to attend last night’s Board of Visitors meeting.
Spicer and Vought were among the Trumpland fixtures rewarded with honoraria in the waning days of the administration, often at the expense of Obama appointees like Henry Kissinger and Madeleine Albright who were booted off the Defense Policy Board in November 2020, two years into their four year terms. On the plus side, the Holocaust Museum will now get the benefit Andrew Giuliani’s sage advice, and Lee Greenwood can class up the Kennedy Center.
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On September 8, the White House Presidential Personnel Office sent Spicer and Vought emails asking for their resignation and specifying that Biden would terminate them if they failed to leave of their own accord. Instead they filed a federal lawsuit in November insisting on their right to stay on the board.
So much for the theory of the unitary, all-powerful executive. And so much for 2019’s Seila Law holding wherein SCOTUS found that the president’s power over the executive branch is so all-encompassing that he can even override statutorily-mandated “for cause” protections to fire appointees.
Or maybe not.
Noting that “the plaintiffs discuss a wide array of historical materials,” Judge Friedrich nonetheless found that the plaintiffs book report “cannot trump a controlling decision of the Supreme Court.” Moreover, the court warned of “serious constitutional concerns” if the executive were barred from ditching purely advisory appointees, particularly in the absence of any language in the statute requiring dismissal for cause — because there are no such “for cause” protections in the statute establishing the Naval Academy Board of Visitors.
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Indeed, Judge Friedrich described “serious constitutional concerns” if the court were to intrude on the executive’s ability to staff his own administration. So Vought and Spicer did not get their injunction allowing them to attend last night’s meeting (which appears not to have taken place anyway due to quorum issues). And since Spicey’s term was due to end on December 31, 2021, his case is effectively moot.
Vought was originally appointed to a term ending in 2023, so he can theoretically soldier on alone, despite apparently dim prospects of success. Or if he’s really desperate for attention can don a ruffly neon green top and shake his moneymaker on television.
Spicer v. Biden [Docket via Court Listener]
Elizabeth Dye lives in Baltimore where she writes about law and politics.