POTUS Appointment Power Limited by U.S. Supreme Court

By: Petra Person

On Tuesday, March 21, 2017, the Supreme Court, in a six to two ruling, restricted the president’s power to temporarily fill vacant government positions while the nominations are conflicted in partisan political fights.[1] Chief Justice, John Roberts, authored the decision, mandating that any individual who has been nominated to permanently fill a vacant Presidential Appointment Needing Senate Approval (“PAS”) post, which may only be filled by someone who is nominated by the president and confirmed by the Senate, cannot perform the duties of that office in an acting capacity, absent very narrow circumstances.[2] The matter involved the position of the National Labor Relations Act’s (“NLRB”) general counsel, which is considered a PAS post; this position that may only be filled by someone nominated by the president and confirmed by the Senate.[3]

President Obama appointed Lafe Solomon as NLRB acting general counsel in June 2010, and Solomon held the office until November 4, 2013, though he never secured Senate confirmation because Republicans viewed him as too favorable to labor unions.[4] In January 2011, six months into his service, President Obama nominated NLRBs “one-time acting” Solomon to permanently fill the position.[5] However, the Senate failed to act on the nomination, and Obama later nominated Richard Griffin, who was confirmed in the fall of 2013.[6] The Supreme Court held that Solomon’s tenure as NLRB General Counsel served as a violation of the 1998 Federal Vacancies Reform Act.[7] The Federal Vacancies Reform Act provides that an individual nominated for a position requiring Senate confirmation cannot serve in the same position on a temporary basis.[8] But the statute also contains an exception if the nominee served for ninety days as a “first assistant” to the individual who previously held the position.[9]

The Obama administration argued that the exception covered Solomon, because he had been a director at a different office within the NLRB.[10] Justice Roberts claimed that a close reading of the statutory text indicated the exception did not cover Solomon’s situation.[11] Roberts explained, “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.”[12] He refused the government’s position that a ruling against it would hinder future presidents, and call into question dozens of temporary appointments made in the past.[13] Justice Roberts did not explain further what the impact of the court’s ruling would be on specific decisions made by Solomon or any other official who might have served improperly in an acting role.[14] The appeals court, clarified that it did not expect its decision “to retroactively undermine a host of NLRB decisions.”[15]

[1] Vin Gurrieri, High Court Sets Limits on Presidential Appointment Power, Law 360 (Mar. 21, 2017), https://www.law360.com/employment/articles/904356/high-court-sets-limits-on-presidential-appointment-power.

[2] The Associated Press, High Court Limits President’s Power to Fill Temporary Posts, Nytimes (Mar. 21, 2017), https://www.nytimes.com/aponline/2017/03/21/us/politics/ap-us-supreme-court-presidential-appointments.html.

[3] Id.

[4] Id.

[5] Id.

[6] Mark Theodore, DC Circuit: NLRB Acting General Counsel Solomon’s Tenure Violated Vacancy Statute, Unfair Labor Practice Complaint Unauthorized, Proskauer (Aug. 12, 2015), http://www.laborrelationsupdate.com/uncategorized/dc-circuit-nlrb-acting-general-counsel-solomons-tenure-violated-vacancy-statute-unfair-labor-practice-complaint-unauthorized/.

[7] Id.

[8] 5 U.S. Code § 3345 (a).

[9] Id.

[10] See Gurrieri, supra note 1.

[11] See Associated Press, supra note 2.

[12] Dan McCue, High Court Limits President’s Power to Fill Temporary Posts, Courthouse News Service (Mar. 21, 2017), http://www.courthousenews.com/high-court-limits-presidents-power-fill-temporary-posts/.

[13] Id.

[14] Id.

[15] Id.

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