High Court Limits President’s Power to Fill Temporary Posts 

(CN) – The U.S. Supreme Court on Tuesday curtailed the president’s power to temporarily fill vacant government posts while nominations are tied up in partisan political fights.

By  6-2 vote, the justices ruled a former top lawyer at the National Labor Relations Board had served in violation of a federal law governing such appointments.

The dispute stems from the tenure of Lafe Solomon as acting general counsel of the National Labor Relations Board from June 2010 to Nov. 4, 2013.

Solomon had 10 years under his belt as director of the NLRB’s Office of Representation Appeals when Ronald Meisburg resigned as NLRB general counsel in June 2010.

Under section (a)(1) of the Federal Vacancies Reform Act of 1998, the “first assistant” to the office is automatically appointed to a given vacancy.

Solomon was not Meisburg’s first assistant, but Obama appointed him as temporary successor under Section (a)(3), which allows the president to appoint a senior officer from within the same agency. Section (a)(2) of the FVRA, it should be noted, allows the president to appoint an officer from another agency.

The justices were asked to consider whether Obama crossed the line in choosing Solomon six months later as his permanent nominee for the general counsel position.

This was uncertain because yet another provision of the FVRA that says, “notwithstanding [section (a)(1)],” a person cannot be both the acting officer and the permanent nominee to the same position, unless that individual served as the first assistant for 90 days out of the past year.

Solomon never won Senate confirmation because Republicans viewed him as too favorable to labor unions.

The Obama administration had asked the court to hold that the notwithstanding provision is highly limited, applying only to people appointed under section (a)(1).

The ruling’s immediate impact will be felt in a pending case related to the legitimacy of Solomon’s appointment to assess the force of regulatory action that the NLRB took during his tenure against SW General, an Arizona ambulance company.

A three-judge panel of the D.C. Circuit sided with the company, finding that Solomon’s complicated appointment invalidated the NRLB action against SW General.

Writing for the court in Tuesday ruling, Chief Justice John Roberts said Lafe Solomon was not allowed to serve as acting general counsel of the agency that enforces labor laws while he was at the same time nominated to fill that role permanently.

Roberts said a close reading of the law’s text shows that the exception did not cover Solomon. He rejected the government’s argument that a ruling against it would hamstring future presidents and call into question dozens of temporary appointments made over the years.

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

In his ruling, Roberts dismissed arguments that historical practice supported the government.

Since the law was enacted in 1998, three presidents have nominated 112 people for permanent posts who also were serving as acting officials. There was never any objection from Congress.

Roberts said those 112 nominations “make up less than two percent of the thousands of nomination to positions in executive agencies” that the Senate has considered during that time.

He said the Senate either may not have noticed a problem or opted not to reject a candidate just to make a point about the law.

It’s the second time in recent years that the presidential appointment process has come under scrutiny by the high court. In 2014, the Supreme Court ruled that Obama’s recess appointment of three NLRB members violated the Constitution.

That ruling invalidated hundreds of NLRB rulings and forced the agency to reissue those decisions.

Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented, noting that the Senate never objected over the years while more than 100 people served in an acting capacity pending their nomination for a permanent post.

Roberts did not explain 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. The appeals court had said it did not expect its decision “to retroactively undermine a host of NLRB decisions.”

The Associated Press contributed to this report.