In a 6-2 ruling Tuesday, the Supreme Court limited the appointment power of the president, deciding that President Obama improperly filled the position of general counsel for the National Labor Relations Board, the main federal labor law enforcement agency.
A majority of the justices ruled that Lafe Solomon, who served as acting general counsel for the board from 2011 through 2013, was there in violation of 1998 Federal Vacancies Reform Act.
The ruling will limit the ability of presidents to fill vacant federal positions when faced with an oppositional Congress.
The ruling is not expected to affect many labor board cases, many of which from that period had already been rolled back by the Supreme Court’s 2014 ruling in NLRB v. Noel Canning.
Tuesday’s opinion was written by Chief Justice John Roberts and joined by Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, Stephen Breyer and Elena Kagan. Justices Sonya Sotomayor and Ruth Bader Ginsburg dissented. The opinion split Obama’s own Supreme Court appointees, Kagan and Sotomayor.
Obama nominated Solomon to be the labor board’s general counsel in 2011 and 2013. Each time, the Senate declined to vote on his nomination. Obama then made Solomon acting general counsel. The justices said that, under the Federal Vacancies Reform Act, once a person is nominated to a position requiring Senate approval that person cannot serve until he is confirmed, regardless of whether lawmakers act on the nomination. The justices said that in such a situation it was up to the president the come up with another nominee who the Senate could act on.
“Once the president submitted (Solomon’s) nomination to fill that position in a permanent capacity (the FVRA) prohibited him from continuing his acting service. 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. And he had a wide array of individuals to choose from: any one of the approximately 250 senior NLRB employees or the hundreds of (other) individuals … throughout the government. The president, however, did not do so, and Solomon’s continued service violated the FVRA,” the majority opinion said.
Sotomayor and Ginsburg argued that the ruling unnecessarily limited the president’s ability to fill vacancies. “The court gives the provision a broader reach than the text can bear,” they argued in their dissent.
