The Supreme Court ruled Tuesday that President Barack Obama violated the Constitution by maintaining former acting National Labor Relations Board General Counsel Lafe Solomon after the Senate refused to vote on his nomination.
Obama named Solomon acting general counsel of the NLRB in June 2010 after Ronald Meisburg’s resignation the same month. Six months later, in Jan. 2011, Solomon was nominated to serve as the agency’s permanent general counsel.
However, the Senate refused to vote on Solomon’s nomination, leaving him as both the acting and nominated general counsel of the NLRB for three years until Richard Griffin’s confirmation in the fall of 2013.
The Supreme Court ruled Solomon’s status as both acting and nominated general counsel for the majority of his three-year tenure violated the Federal Vacancies Reform Act of 1998, which restrains the president’s appointment power.
The FVRA prohibits an individual from serving as both the acting officer and permanent nominee of a position which requires Senate confirmation.
Chief Justice John Roberts ruled in the 6-2 decision that the appointment was an “end-run around” the Constitution.
“We cannot cast aside the separation of powers and the Appointments Clause’s important check on executive power for the sake of administrative convenience or efficiency,” Roberts wrote in the ruling opinion.
“The Judicial Branch must be most vigilant in guarding the separation between the political powers precisely when those powers collude to avoid the structural constraints of our Constitution,” the ruling continues.
Tuesday’s ruling follows a similar case five years ago, when the court ruled unanimously that Obama unconstitutionally recess-appointed two NLRB board members while the Senate was still in session.
That decision opened the door for employers and unions to challenge the more than 1,000 decisions issued by the NLRB during those board members’ time at the agency. Dozens of cases were reheard by the NLRB as a result.
Experts doubt Tuesday’s ruling will prompt rehearings of NLRB cases decided during Solomon’s tenure. Rather, they believe this sets an important precedent on the powers of the president to fill vacant appointments.
“The case is a reminder that the language of the FVRA statute means what it says and must be followed, not ignored by presidents, as appeared to be the case here,” labor attorney David Phippen told the Washington Free Beacon.
“The decision … appe
Law firm Fisher Phillips wrote that the Supreme Court’s decision effectively granted the Senate an upper hand in future presidential confirmation hearings, which doesn’t bode well for President Trump, who has frequently criticized Senate Democrats for delaying his cabinet appointments for “purely political reasons.”
The Democrats are delaying my cabinet picks for purely political reasons. They have nothing going but to obstruct. Now have an Obama A.G.
— Donald J. Trump (@realDonaldTrump) January 31, 2017
“Moving forward, presidents will know that once they appoint certain acting officials to fill the same post permanently, the acting official will need to step down from the post until confirmed by the Senate,” wrote Fisher Phillips.
“This decision will make it more difficult for presidents to place their preferred individuals in powerful administrative positions, particularly when the Senate fails or refuses to act on presidential appointments.”
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