Article 2 “Advice and Consent” Limits Appointment Power of the President

In National Labor Relations Board v. SW General, the Supreme Court limited the President’s ability to fill vacancies under the Federal Vacancies Reform Act of 1998 (FVRA). By a vote of 7-2, the Court held that a person can’t serve in an acting capacity as the head of a federal agency once being nominated to permanently serve in the role if the position requires U.S. Senate confirmation. Accordingly, the Court further held that President Barack Obama’s temporary appointment of general counsel for the National Labor Review Board (NLRB) exceeded his legal authority.

Presidential Appointment Power

Under Article II of the Constitution, the President must obtain “the Advice and Consent of the Senate” before appointing “Officers of the United States.” As a result, the responsibilities of an office requiring Presidential appointment and Senate confirmation (PAS office) may go unperformed if a vacancy arises and the President and Senate fail to agree on a replacement. To prevent long-lasting vacancies, the Federal Vacancies Reform Act of 1998 (FVRA) gives the President limited authority to appoint acting officials to temporarily perform the functions of a vacant PAS office without first obtaining Senate approval.

Section 3345(a) of the FVRA permits three categories of Government officials to perform acting service in a vacant PAS office. Subsection (a)(1) prescribes the general rule that, if a vacancy arises in a PAS office, the first assistant to that office “shall perform” the office’s “functions and duties temporarily in an acting capacity.” Subsections (a)(2) and (a)(3) provide that, “notwithstanding paragraph (1),” the President “may direct” a person already serving in another PAS office, or a senior employee in the relevant agency, to serve in an acting capacity instead.

Under Section 3345, certain individuals are ineligible for acting service. Subsection (b)(1) states: “Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section” if the President nominates him for the vacant PAS office and, during the 365-day period preceding the vacancy, the person “did not serve in the position of first assistant” to that office or “served in [that] position . . . for less than 90 days.”

Facts of National Labor Relations Board v SW General

The general counsel of the NLRB is a PAS office. In June 2010, President Obama directed Lafe Solomon to serve as acting general counsel. Solomon qualified for acting service under subsection (a)(3) of the FVRA because he was a senior employee at the NLRB. In January 2011, the President nominated Solomon to serve as the NLRB’s general counsel on a permanent basis. The Senate failed to act on the nomination, and the President nominated a new candidate, whom the Senate confirmed in October 2013.

While Solomon was serving as the acting general counsel to the NLRB, an NLRB Regional Director issued an unfair labor practices complaint against respondent SW General, Inc. An Administrative Law Judge concluded that SW General had committed unfair labor practices, and the NLRB agreed. SW General sought review in the United States Court of Appeals for the District of Columbia Circuit, arguing that the complaint was invalid because, under subsection (b)(1) of the FVRA, Solomon could not perform the duties of general counsel to the NLRB after having been nominated to fill that position. The NLRB countered that subsection (b)(1) applies only to first assistants who automatically assume acting duties under subsection (a)(1), not to acting officers who, like Solomon, serve under (a)(2) or (a)(3).

The Court of Appeals vacated the Board’s order. It concluded that the prohibition on acting service by nominees contained in subsection (b)(1) applies to all acting officers, regardless of whether they serve pursuant to subsection (a)(1), (a)(2), or (a)(3). Accordingly, Solomon became ineligible to perform the duties of general counsel in an acting capacity once the President nominated him to fill that post.

Majority Decision in National Labor Relations Board v SW General

The majority agreed with the Court of Appeals. “Subsection (b)(1) of the FVRA prevents a person who has been nominated to fill a vacant PAS office from performing the duties of that office in an acting capacity,” the Court held. “The prohibition applies to anyone performing acting service under the FVRA. It is not limited to first assistants performing acting service under subsection (a)(1).”

In reaching its decision, the majority relied on the text of the FVRA. Chief Justice John Roberts authored the majority opinion. As he explained:

(1) Subsection (b)(1) applies to any “person” and prohibits service “as an acting officer for an office under this section.” “Person” has an expansive meaning that can encompass anyone who performs acting duties under the FVRA. See Pfizer Inc. v. Government of India, 434 U. S. 308, 312. And “under this section” clarifies that subsection (b)(1) applies to all of §3345: The FVRA contains cross- references to specific subsections and paragraphs. But subsection (b)(1) refers to §3345, which contains all of the ways a person may become an acting officer. The rest of the FVRA also uses the pairing of “person” and “section” to encompass anyone serving as an acting officer under the FVRA, and Congress could readily have used more specific language if it intended subsection (b)(1) to apply only to first assistants acting under (a)(1).

Because it found the text of the FVRA to be clear, the majority noted that it was unnecessary to consider legislative history, purpose, and post-enactment practice. It nonetheless found the NLRB’s arguments uncompelling. The Court specifically rejected the argument that, since the FVRA was enacted, Congress has not objected when Presidents have nominated individuals who were serving as acting officers under subsection (a)(2) or (a)(3), and that the Office of Legal Counsel and Government Accountability Office have issued guidance construing subsection (b)(1) to apply only to first assistants. According to the Court, “the evidence the Board cites is not significant enough to warrant the conclusion that Congress’s failure to speak up implies that it has acquiesced in the view that subsection (b)(1) applies only to first assistants.”

Dissenting Opinion in National Labor Relations Board v SW General

Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented. They disagreed with the Court’s conclusion that the provision also applies to other officials who may serve as acting officials if the President directs them to serve in that capacity. “The Court gives the provision a broader reach than the text can bear with no support from the history of, or practice under, the FVRA,” Justice Sotomayor wrote