Kagan, Breyer Join GOP Justices to Strike Down Unconstitutional Obama Appointment

Court rules that another Obama labor appointee illegally served at NLRB

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The Supreme Court ruled that President Obama violated the Constitution when he maintained an acting agency appointment after the Senate refused to confirm him.

The court ruled Tuesday that Obama appointee Lafe Solomon illegally served as acting general counsel to the National Labor Relations Board from 2010 to 2013. Solomon, who once violated the agency's ethics rules, should have vacated the position in accordance with the Federal Vacancies Reform Act of 1998 (FVRA) after the Senate refused to take up his nomination to serve as permanent general counsel in 2011, the court found in a 6-2 opinion authored by Chief Justice John Roberts. 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," the majority ruled.

The case came to the court after the NLRB filed unfair labor practice charges against an Arizona-based ambulance service, Southwest General, following union complaints.

David Phippen, a management-side labor attorney at the firm Constangy, Brooks, Smith & Prophete, said the decision clarifies the meaning of the FVRA.

"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," Phippen said in an email. "The decision … appears to make it somewhat more difficult for Presidents to put ‘her or his people' into important agency positions unilaterally, i.e.,  without approval of the Senate."

The decision came less than five years after the court unanimously ruled that Obama unconstitutionally recess-appointed two Democratic attorneys as NLRB board members while the Senate was still in session. That decision allowed employers and unions to challenge more than 1,000 decisions issued during those board members' brief tenure at the agency. The NLRB reheard dozens of cases as a result.

Some labor attorneys do not think Tuesday's case will have the same wide-reaching effects because most companies that had business before the NLRB have already moved on and are unlikely to appeal.

"The broader practical impact of this decision … is likely limited," an attorney at the firm Fisher Phillips wrote. "None of the stakeholders in this case argued that the consequences of this decision would have wide-ranging impacts on any pending cases. The reason is simple: most litigants have not challenged acting officials’ authority to make decisions under the FVRA."

Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented from the decision, writing that Obama acted within his authority to fill the general counsel vacancy, which was not properly filled until October 2013 when the Senate confirmed Richard F. Griffin, one of the NLRB board members at the center of the recess appointment case.

Sotomayor said the majority extended the scope of the FVRA beyond its original intent. She said the majority's decision would apply to 100 similar appointments made after the act passed in 1998, writing that "[c]ongressional silence in the face of a decade-plus practice of giving [the act] a narrow reach casts serious doubt on the broader interpretation.

"Reading the provision more broadly to apply to all acting officials disregards the full text of the FVRA and finds no support in its purpose or history," Sotomayor wrote in the dissent.

The majority said that the law's text lent itself to broader interpretation. It emphasized that the court must preserve the separation of powers in order to prevent executive overreach. Congress' silence, the court ruled, should not be interpreted as tacit confirmation.

"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 says.

The decision could affect Trump's ability to fill cabinet appointments in the future, according to Fisher Phillips. There are currently two vacancies at the NLRB that Trump has not attempted to fill, though he did tap Philip Miscimarra, the board's sole Republican, as acting chairman.

The Supreme Court gave the Senate more leverage in future confirmation battles.

"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," Fisher Phillips said. "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."

Bill McMorris   Email Bill | Full Bio | RSS
Bill McMorris is a staff writer for the Washington Free Beacon. He joins the Beacon from the Franklin Center for Government and Public Integrity, where he was managing editor of Old Dominion Watchdog. He was a 2010 Robert Novak Fellow with the Phillips Foundation, where he studied state pension shortfalls. His work has been featured on CNN, Fox News, The Economist, Colbert Report, and numerous print publications and radio stations. He lives in Alexandria, Va, with his wife and three daughters. His Twitter handle is @FBillMcMorris. His email address is mcmorris@freebeacon.com.

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