Supreme Court tightens restrictions on presidential appointments
This ruling could narrow the president鈥檚 nominating authority, say experts. But it's not clear what effect it will have on the slow progress filling vacant spots in the executive branch.
The US Supreme Court on Tuesday limited the president's power to temporarily fill vacant government posts while nominations are tied up in partisan political fights.
J. Scott Applewhite/AP/File
When the National Labor Relations Board (NLRB) ruled that SW General, Inc. had violated federal labor law, the Scottsdale, Ariz., ambulance firm questioned whether the NLRB鈥檚 acting general counsel, Lafe Solomon, had authority to handle the case.
On Wednesday, the US Supreme Court sided with SW General, ruling 6-2 that Mr. Solomon鈥檚 2011 nomination by then-President Barack Obama violated the 1998 Federal Vacancies Reform Act, rendering Solomon鈥檚 actions against SW General null and void.
Legal analysts agree that this ruling could narrow the president鈥檚 nominating authority. But what it means for the Trump administration鈥檚 to fill vacant spots in the executive branch, or the hundreds of other NLRB cases presided over by Mr. Solomon, remains unclear.
鈥淭he ruling appears to be limited to those cases involving Solomon decisions where the issue was expressly raised by a party,鈥� on Tuesday. But Mr. Solomon鈥檚 busy caseload during his three years as acting NLRB counsel means that this ruling could have a far-reaching impact.
The law at issue, the Federal Vacancies Reform Act (FVRA), was first passed by Congress in 1998. It prohibits someone nominated for a post requiring Senate confirmation 鈥� such as the NLRB鈥檚 general counsel 鈥� from serving in the same position on a temporary, or 鈥渁cting,鈥� basis.
Mr. Obama had filled the spot of general counsel with Mr. Solomon on such a basis in 2010. Then, in 2011, he nominated him to serve on a permanent basis. The government鈥檚 lawyers have since argued its action was covered by an exception in FVRA, one that applies to nominees who served as a 鈥渇irst assistant鈥� for at least 90 days to the person who had previously held that office; Solomon had previously directed a different NLRB office, the Associated Press reports.
In his opinion, Chief Justice John Roberts disagreed. 鈥淥nce the President submitted [Solomon鈥檚] nomination to fill that position in a permanent capacity, [FVRA] subsection (b)(1) prohibited him from continuing his acting service,鈥� he wrote.
Instead, Solomon served as acting general counsel for two years while his nomination remained bogged down in the Senate. He had plenty of company. In 2013, that a backlog of presidential nominees awaiting Senate confirmation had grown under Obama, and that 鈥淩epublicans have increasingly created roadblocks for nominees.鈥�
Obama wasn't the first president to stretch the role of "acting" officials.
In their dissenting opinions, Justices Sonia Sotomayor and Ruth Bader Ginsburg noted that since the law was passed in 1998, more than 100 people have served in acting roles while the US Senate considered their nominations for permanent jobs.
It鈥檚 too early to tell whether this case will draw actions of these other acting appointees into question. But it could lead to re-examinations of the labor disputes that Mr. Solomon presided over during his three-year tenure (his nomination was withdrawn in 2013). , Mark Theodore聽and聽Joshua Fox聽wrote:
鈥淭here is no way to tell how many of the hundreds of prosecutorial decisions made by Lafe Solomon were challenged as 鈥榲oidable鈥� ... but it is possible the number could be very high 鈥� Solomon worked and made decisions in his capacity as Acting General Counsel from January 2011 to October 2013. Actions taken by the Acting General Counsel during this period of time should be reviewed.鈥�