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Friday, December 8, 2023 | Back issues
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Labor Board Nominations Go to High Court Again

WASHINGTON (CN) — President Barack Obama's appointment powers faced a new review by the U.S. Supreme Court on Monday, in an arcane case that sent the justices scrambling into diner mode for their metaphors.

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.

What the Supreme Court must now consider is whether Obama crossed the line in choosing Solomon six months later as his permanent nominee for the general counsel position.

This is 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.

The government wants the Supreme Court to hold that the notwithstanding provision is highly limited, applying only to people appointed under section (a)(1).

This prompted skepticism, however, from Justice Stephen Breyer.

"I would just wonder," Breyer asked, "were I from Mars, what's the point of such a statute?"

Justice Elena Kagan meanwhile used a restaurant analogy to sum up the legal entanglement.

It would be like ordering a salad, a steak and a fruit cup, Kagan said, only to tell the waiter, "notwithstanding order No. 3, I can't eat anything with strawberries."

The justice called it strange that the government's reading of the law would allow the waiter to still bring her a strawberry salad despite her final constraint.

"So I take it, you know, you have some arguments, some strong arguments on history and on practice, but, you know, again, isn't that just a peculiar way to understand the, you know, 'notwithstanding No. 3, no strawberries?'" Kagan asked.

The court must decide 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.

The justices took up the case last year after 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.

Defending Obama's appointment before the court Monday, Acting U.S. Solicitor General Ian Gershengorn emphasized that no lawmakers have ever before objected to the government's reading of the law in the two decades it has been in effect.

"To me, it is very much the dog that didn't bark," Gershengorn said. "Congress had been barking quite loudly and vociferously for decades on this very issue. and then it adopted a statute that was interpreted by its own watchdog in a certain way, and then the barking stopped. And it seems to me this court is really ignoring reality to not see that that has important weight."

Chief Justice John Roberts did not put too much stock in this argument. "I think you're putting a significant burden on Congress to sort of speak up," Roberts said.

Shay Dvoretzky, who argued for SW General, said any other reading would allow presidents to skip the Senate's approval of executive-branch appointees by stacking agencies full of acting officers.

"Congress saw that as a particular affront to its advice and consent role and that exemplifies a lot of the problems that led to the enactment of the FVRA in which the presidents of both parties were putting in their ultimate choice for a position long term without Senate confirmation," Dvoretzky said.

Kagan meanwhile brought up the solicitor general's point about minimal objections from Congress.

"This has been a time where there's been a lot of partisan bickering over appointments," Kagan said. "And you would think that in that context, if anybody had thought that this statute could be read differently, we would have heard about it. And yet we hear absolutely nothing."

The Supreme Court already held in 2012 that Obama violated the U.S. Constitution when in early 2012 he nominated three people to fill vacancies on the five-member NLRB.

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