The Supreme Court said Monday it would hear a case involving whether the former acting general counsel for the National Labor Relations Board was legally appointed to that position.
If the court finds that he wasn’t, it could significantly limit the president’s ability to appoint officials without congressional approval, even in a temporary, fill-in capacity.
In a typically terse announcement, the justices granted the government’s request to hear its challenge to the case SW General Inc. vs. NLRB. Last year, the D.C. Circuit Court of Appeals effectively voided Lafe Solomon’s 2011-13 tenure as the top lawyer for the board, the main federal labor law enforcement agency.
The court agreed with an Arizona-based ambulance company’s argument that Solomon, a long-serving board attorney, could no longer serve as its “acting general counsel” after Obama nominated him to fill in the post permanently.
The appeals court’s ruling alarmed the administration. President Obama has regularly used his executive authority to circumvent Congress, including regarding high-level appointees. The court’s decision would force him to cut more deals with Congress on appointees.
“If left in place, the decision will cast a cloud over the service of past and current officers at high levels of government. And because challenges to the actions of virtually every administrative agency can be brought in the District of Columbia, the decision below, if left in place, will pose a significant impediment to the ability of any president going forward to temporarily fill important posts in the executive branch with the persons whom the president deems most qualified to fill them permanently,” the Obama administration said in its request to the Supreme Court.
Solomon was appointed by the president in mid-2010 as acting general counsel to the labor board after the previous one stepped down. Since Solomon was technically temporarily filling in at the position, the move didn’t require congressional approval. The following January, Obama officially nominated him to serve as general counsel.
The Senate never took up his nomination, however, and it was later withdrawn. Solomon, nevertheless, remained as acting general counsel until his replacement, current General Counsel Richard Griffin, received a full Senate confirmation in 2013.
During the 2011-13 period he was acting general counsel, Solomon pursued and initiated cases as if he were a regular Senate confirmee.
After it was hit with an unfair labor practices complaint in 2013, SW General challenged Solomon’s authority, arguing that he was serving in violation of the Federal Vacancies Reform Act of 1998, a law intended to prevent the president from using temporary appointments to circumvent the constitutional “advise and consent” process.
The D.C. Circuirt Court agreed, finding that the law prevents nominees to a particular post from also serving on it at the same time in an acting capacity. “We now conclude that (A) Solomon was serving in violation of the FVRA when the complaint issued against Southwest and (B) the violation requires us to vacate the board’s order,” it said in its ruling last year.
The current Supreme Court has limited the president’s ability to appoint people outside of the Senate confirmation. The last such major case, Noel Canning v. NLRB, is indirectly related to this one.
In that case, the justices unanimously found that while the president does have the ability to make emergency “recess appointments” when the Senate is not in session, the president cannot himself also decide when the Senate is or is not in session. Only the Senate can do that.
That ruling invalidated the appointments of three of Obama’s 2012 recess appointments to the labor board: board members Richard Griffin, Terrence Flynn and Sharon Block. The following year, Griffin replaced Solomon as general counsel as part of the deal between the administration and Congress.
“The fact that the Supreme Court is now taking a second case to examine whether an Obama appointee was acting without proper legal authority is symptomatic of the Obama board’s disregard since day one of the legal limits to its powers as it aggressively pursued Big Labor’s agenda,” said Pat Semmens, spokesman for the National Right to Work Legal Defense Foundation.
