SCOTUS May Choose Senate in Advice and Consent Fight

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By Kimberly Strawbridge Robinson

Nov. 7 — A fight over the president’s power to fill temporary vacancies without the advice and consent of the Senate played out at the U.S. Supreme Court Nov. 7 ( NLRB v. SW General, Inc., U.S., No. 15-1251 , argued 11/7/16 ).

The parties agree that Congress passed the 1998 Federal Vacancies Reform Act to regain the power it had lost when presidents from both parties flouted the previous law’s requirements, including by appointing their desired nominee to a lower position and then allowing them to serve as the “acting” official.

But the parties disagree on whether a person serving in an acting capacity may continue to serve after being nominated to fill the role permanently.

The justices seemed to lean in favor of requiring nearly all acting officials to step aside while their permanent nomination is being considered—not just a limited few. All eight of the lower court judges who have looked at the issue have decided it that way, Justice Anthony M. Kennedy said.

Conspicuously missing from Monday’s argument was the Senate itself. The challenge to the president’s authority was brought by SW General Inc., the losing party in a National Labor Relations Board proceeding over unfair labor practices.

Broad Language

Congress used broad language when limiting the president’s power to temporarily fill vacancies, Shay Dvoretzky of Jones Day, Washington, argued on behalf SW General, challenging President Obama’s NLRB appointment.

The Federal Vacancies Reform Act, at 5 U.S.C. §3345, lays out what should happen whenever an officer of an executive agency, whose appointment requires the advice and consent of the Senate, “dies, resigns, or is otherwise unable to perform the functions and duties of the office.”

The FVRA first looks to the “first assistant,” who shall perform the duties in an “acting capacity.”

The FVRA then gives the president flexibility to instead appoint someone else that has sufficient qualifications—either another officer that was subject to the advice-and-consent requirement, or a “long-time” employee of the agency with the vacancy.

With that flexibility, however, Congress limited whom the President could appoint to fill the vacancy on a permanent basis.

The “person” nominated to fill the vacancy on a permanent basis cannot continue to serve in the acting capacity unless they have served as the first assistant for more than 90 days. It’s this limitation that’s at issue in the case.

End-Run Around Law

That requirement was put in place to prevent end-runs around the Senate’s advice-and-consent duties, which presidents from both major parties had done, Dvoretzky said.

Here, Lafe Solomon served as Acting General Counsel of the NLRB for over three years, without being confirmed by the Senate, Dvoretzky said. Notably, Solomon was twice unsuccessfully nominated to fill the vacancy permanently, he said.

The use of the broad term “person” in the 90-day limitation shows that Congress intended for this limitation to apply to all three kinds of persons that the president might appoint in an acting capacity: the first assistant, another PAS officer or a long-time agency employee, Dvoretzky said.

That means that Solomon—who was a long-time NLRB employee—wasn’t allowed to act in the acting capacity while his permanent nomination was before the Senate, he said.

Setting Up the Conflict

That broad language just sets up the conflict, Ian H. Gershengorn of the Department of Justice, Washington, told the justices on behalf of the government. Gershengorn is himself serving in an acting capacity as Acting Solicitor General.

But in addition to that broad language, Congress specifically called out only one section as subject to the limitation, Gershengorn said. That was the section dealing with the appointment of first assistants, he said.

“Notwithstanding” that section is how the limitation starts.

That specific limitation makes clear that the 90-day requirement only applies to first assistants appointed in an acting capacity and later nominated to fill the role permanently, Gershengorn said.

Ripped Out of Office

It seems strange that Congress would want to rip out the acting officer while the permanent nomination is being considered by the Senate, Justice Stephen G. Breyer said.

Congress decided to create that kind of disruption with regard to first assistant because of a widely criticized nomination that culminated in the adoption of the FVRA, he said.

President Bill Clinton brought in Bill Lann Lee from outside the government in response to the Senate’s refusal to fill the vacancy of Assistant Attorney General for the Civil Rights Division of the DOJ with the president’s first candidate.

He was appointed “first assistant” and then assumed the duties of the Assistant Attorney General on an acting basis. He continued in that capacity while his nomination to permanently fill the office was pending in the Senate.

That “was the problem that gave rise to the statute, and on their interpretation they passed some words that solved that problem,” Breyer said.

“What’s the point” of such a requirement with an individual already confirmed by the Senate or a long-time employee of the agency, Breyer wanted to know.

Strawberries With That?

If that was what Congress meant to do, it did it in a peculiar way, Justice Elena Kagan said.

Usually the phrase “notwithstanding section . . .” just means, “close your eyes” to that provision, she said.

“But it doesn’t do anything more than that,” Kagan said.

She used a down-to-earth hypothetical as an illustration.

“I’m at a restaurant,” and “I place three orders,” Kagan said.

“I say, number one, I’ll have the house salad. Number two, I’ll have the steak. Number three, I’ll have the fruit cup.”

“And then I tell the waiter, notwithstanding order number three, I can’t eat anything with strawberries,” Kagan said.

Under the government’s theory, “the waiter could bring me a house salad with strawberries in it, and that seems to me a quite odd interpretation of what’s a pretty clear instruction: No strawberries,” Kagan said.

Congressional Estoppel?

Even if the language is ambiguous, history supports the federal government here, Gershengorn said.

Until the decision below, presidents “of both parties have made scores of nominations and designations based on that interpretation of the text without recorded objection from even a single Senator or staff member,” he said.

There have been over 100 appointments over 20 years under that interpretation, Gershengorn said.

That’s a strong argument in your favor, Kagan said.

This all happened during “a time where there’s been a lot of partisan bickering over appointments,” Kagan said.

But, that’s “putting a significant burden on Congress to sort of speak up,” Chief Justice John Roberts Jr. said.

“If they don’t speak up in every instance where they think some prerogative or interpretation is being misapplied,” then they can be “deemed to have acquiesced in it,” he said. “There’s sort of an estoppel against Congress?”

Falling Sky?

Four of the justices seemed to lean in favor of preserving the Senate’s power despite it’s failure to speak up—Roberts, Kennedy and Justices Ruth Bader Ginsburg and Samuel A. Alito Jr. That’s enough to affirm the decision below against the government, with only eight justices on the bench.

There was concern, however, for what that might mean for the invalidated appointments.

Gershengorn said that result would make huge waves. “We have not gone back and cataloged all of the potential ramifications, but we do think that with over 100 officials over the course of 20 years, the effects of this are really quite significant,” he said.

But the government has already started “shoring up defenses” if that were to happen, Dvoretzky said. So the sky isn’t going to fall, he told the justices.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editors responsible for this story: Jessie Kokrda Kamens at; Jeffrey D. Koelemay at

For More Information

A transcript of the argument is at

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

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