Supreme Court limits president’s power to temporarily fill agency vacancies

by Olivia Beavers - 03/21/17 4:13 PM ET

The Supreme Court voted Tuesday to limit the president’s power to fill agency vacancies on a temporary basis while nominees go through the official and sometimes beleaguered confirmation process.

The court ruled 6-2 that the National Labor Relations Board’s (NLRB) former acting general counsel should not have been allowed to serve while awaiting confirmation for the job on a permanent basis.

Lafe Solomon’s appointment as acting general counsel violated the Federal Vacancies Reform Act, the court said.

{mosads}The 1998 law makes the exception that a nominee can serve on a temporary basis if they previously served for 90 days as a “first assistant” to the person whom they would succeed.

The Obama administration argued Solomon fit the exception because he served as a director at the NLRB, albeit in a different office. The White House legal counsel also argued that a ruling against Solomon’s service would obstruct future presidents’ ability to make temporary appointments.

Former President Obama appointed Solomon to the position of acting general counsel of the NLRB in the spring of 2010. But Obama withdrew the nomination after it stalled in the Senate confirmation process for over two years.

Writing in the majority, Chief Justice John Roberts said Solomon’s service in the role did not fit within the law’s exception rules.

“This does not mean that the duties of general counsel to the NLRB needed to go unperformed,” Roberts wrote. “The president could have appointed another person to serve as the acting officer in Solomon’s place.”

Roberts also dismissed the Obama administration’s argument that this ruling would hinder presidents from nominating officials in acting positions, noting that the three presidents since the law’s passing nominated 112 officials to permanent government positions after serving in an acting capacity.

Solomon’s role at the NLRB first came under question when SW General Inc., an Arizona-based company, faced accusations by Solomon’s office of unfair labor practices. The company argued that Solomon’s service violated the law, which made the complaint void. The U.S. Court of Appeals for the District of Columbia Circuit ruled in favor of the company.

Justices Ruth Bader Ginsburg and Sonia Sotomayor were the two dissenters in the case.