In a 6–2 judgement Tuesday, the U.S. Supreme Court curbed a president’s power to fill certain government posts while nominations are debated in Congress.
The ruling upheld a lower court decision in which former President Obama was determined to have exceeded presidential authority in the 2011 appointment of Lafe Solomon as Acting General Counsel of the National Labor Relations Board (NLRB), who served from 2011 until 2013.
The case in question revolves around a complaint lodged against SW General Inc. by the NLRB, which charged the private ambulance company with improperly halting longevity payments to employees.
Attorneys representing SW General argued Solomon could not fill the role at NLRB because Mr. Obama had nominated him to fulfill the role permanently, and thus, held an invalid tenure. At the time, Solomon’s nomination was immobilized in Congress. Deemed too close to labor unions, Obama withdrew Solomon’s nomination in August 2013.
Following a series of court rulings, the most recent a U.S. Court of Appeals for the District of Columbia Circuit, the Supreme Court ruled Mr. Obama violated 1998 Federal Vacancies Reform Act (FVRA).
In his majority opinion, Chief Justice John Roberts wrote:
“Once the president submitted (Solomon’s) nomination to fill that position in a permanent capacity (the FVRA) prohibited him from continuing his acting service. This does not mean that the duties of general counsel to the NLRB needed to go unperformed; the president could have appointed another person to serve as the acting officer in Solomon’s place. And he had a wide array of individuals to choose from: any one of the approximately 250 senior NLRB employees or the hundreds of (other) individuals . . . throughout the government. The president, however, did not do so, and Solomon’s continued service violated the FVRA.”
Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented, arguing that since FVRA passed two decades ago, over 100 federal government administrators have performed active duties during the Senate confirmation process.
The High Court ruling means that presidents will no longer be able to appoint people that serve as temporary agency heads to permanent positions requiring Senate approval.
[Reuters] [Washington Examiner] [Photo courtesy Mandel Ngan/AFP/Getty Images via People]