United States: Supreme Court Uses Labor Case To Again Stifle Presidential Power

In a decision released today, a 6 to 2 majority of the Supreme Court restricted the president's power to fill high-level administrative positions without the Senate's advice and consent, handing a victory to an employer in a labor dispute. The decision has wide-ranging implications for this and future presidents' ability to choose nominees for important positions in administrative agencies such as the National Labor Relations Board (NLRB), and continues a recent trend of limiting presidential power recently seen in the Court's June 2016 immigration decision.

While the decision will have an immediate impact on the litigants in this case and the president's prerogative to appoint administrative officials, the long-term effects of the Court's decision on employers are probably limited (National Labor Relations Board v. SW General). 

Gridlock From Clinton To Trump

This case is a byproduct of another contentious era of federal government gridlock. By the late 1990s, the federal government bureaucracy was treading water. Approximately 20% of government officers in positions technically requiring presidential nomination and Senate confirmation (so-called PAS positions) were serving in "acting" capacities, meaning they had not been nominated and confirmed for the position. Though federal law limits the time that officers are allowed to serve in an acting capacity, many acting officers served well beyond their supposed legal time limits. 

The Federal Vacancies Reform Act: Who Is In Charge?

In that hyper-partisan and politically-acrimonious time, Congress reached bipartisan agreement on legislation attempting to end presidential runarounds of the constitutional provision requiring the advice and consent of the Senate for PAS positions. The resulting legislation is the Federal Vacancies Reform Act of 1998 (FVRA). 

The FVRA provides several ways for the president to fill PAS position vacancies. The default is that the "first assistant" to the PAS position automatically takes over in an acting capacity. But the president may also appoint either a senior employee from the same administrative agency or an officer who has already been nominated and confirmed for a position in another administrative agency to serve in an acting capacity.

To address the problem of individuals serving in acting capacities improperly or longer than permitted, the FVRA voids certain actions taken by acting officers deemed to be serving in violation of the statute. An open question existed, however, as to which acting officers were legitimately serving in their capacities.

How Did We Get Here?

After the then-General Counsel resigned in 2010, President Obama directed Lafe Solomon, a senior employee of the NLRB, to take over as acting General Counsel. Six months later, President Obama nominated Solomon to fill the position on a permanent basis, but the Senate did not act on Solomon's nomination. After another unsuccessful attempt, President Obama ultimately withdrew Solomon's name and nominated another individual whom the Senate confirmed in November 2013.

In the process, Solomon served as acting General Counsel from June 2010 through November 2013. During that window of time, a union filed an unfair labor practice (ULP) charge against an Arizona ambulance service provider, SW General, Inc. (Southwest). After a hearing, an administrative law judge found that Southwest committed a ULP. Southwest objected to the judge's findings. The employer noted that the NLRB's General Counsel has final and unreviewable authority with respect the issuance of ULP complaints, as well as the investigation and prosecution of such matters, and that Solomon's role in the matter was improper.  

Because Solomon continued to serve in an acting capacity after President Obama nominated him for NLRB General Counsel on a permanent basis, Southwest urged the Board to rule the charge against it had no force or effect. In sum, the employer's main argument was Solomon served in violation of the FVRA, because the statute prohibits some acting officers from continuing to serve in an acting role when nominated by the president to fill the position permanently. The Board disagreed, adopting most of the administrative law judge's findings and ignoring Southwest's argument relating to Solomon's role. 

On appeal, the Court of Appeals for the District of Columbia sided with Southwest and held that the FVRA prohibits any person serving in an acting capacity in a PAS position from continuing in such a position after permanent presidential appointment. Since Solomon served in violation of the statute after President Obama's nomination, the Court of Appeals held that actions he took (e.g., issuing charges) after his nomination were invalid.

The NLRB appealed, and the Supreme Court was asked to address whether the text of the FVRA – characterized by one Justice as "peculiar" during oral argument – prohibits all acting officers from continuing as temporary designees after permanent presidential appointment, or whether the statute only prohibits first assistants who become acting officers from continuing in the position when appointed to fill the position permanently. 

SCOTUS Rejects NLRB Challenge, Limits Presidential Authority

The divided Supreme Court agreed with Southwest and the D.C. Circuit: acting officials can't continue to serve post-nomination. The Court held that the text of the FVRA clearly prohibits individuals nominated to fill a vacant PAS position from performing that position's duties in an acting capacity. In so holding, the majority refused to credit the argument that the legislative history and past practice supported applying the ban only to first assistants, noting dryly that the "glitch in this argument is of course the text of" the statute. 

What This Means Going Forward

The only sure thing is that Southwest, the employer in this case, is off the hook for the unfair labor practice charge. The broader practical impact of this decision, however, is likely limited. 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. The only pending cases impacted are cases in which a party has timely challenged an improperly serving acting official's action. 

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. 

On a broader scale, however, 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. Accordingly, the Court's opinion is a modest victory for employers who are protected from overreaching presidential appointments, such as the long-term, temporary NLRB General Counsel designee in this case who served without the advice and consent of the Senate.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.