Supreme Court Rolls Back Obama Overreach on Executive Appointments

WASHINGTON, DC/ATLANTA, GA (March 21, 2017): On a day when the Supreme Court and our Constitution were on full display on Capitol Hill, the U.S. Supreme Court sent a clear message to those continuing to defend the Obama Administration’s executive overreach implemented only by his pen and phone.

While the Senate Judiciary Committee grilled Judge Gorsuch just a few blocks away, Chief Justice Roberts announced his 6-2 majority opinion in NLRB v. SW General, holding that the President may not encroach upon the Senate’s “advice and consent” role and must abide by the Federal Vacancies Reform Act (FVRA) when making temporary appointments to open executive positions.

While the majority opinion largely focused on canons of statutory construction, Justice Thomas’ concurring opinion left no question regarding the Court’s ever important role in protecting our Constitution and sent a warning to those seeking to dismantle its fundamental principles: “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[.]” Notably, Justice Kagan joined the majority and Justice Sotomayor, joined by Justice Ginsburg, dissented.

At issue in the case was President Obama’s appointment of NLRB’s General Counsel Solomon to serve as an acting official while the Senate considered his nomination to the post. The Senate twice rejected his nomination, yet he continued to serve. Previous administrations similarly abused the statute to fill vacancies with individuals who never obtained Senate confirmation. These individuals, like General Counsel Solomon, occupied positions of great power and authority over vast portions of the federal government, military branches, and even entire sectors of the economy.

Congress passed the FVRA to limit the President’s ability to fill vacancies in the federal bureaucracy with “acting officials” who are not properly appointed and confirmed with the “advice and consent” of the Senate. The Senate’s constitutional “check” on the Executive’s appointment power limits potential abuses of the appointment power, which the Founders knew had the potential to become “the very definition of tyranny” if not properly curtailed. In short, the case turned on the plain meaning of the statute. The statute clearly labels an individual as ineligible to become an “acting official” if she did not serve as a “first assistant” to the position she is temporarily filling, only served as a “first assistant” for less than 90 days, or if she is the current nominee.

As Southeastern Legal Foundation pointed out in its amicus curiae brief supporting the Petitioner, the danger of unaccountable officials never confirmed by the Senate yet serving in such powerful roles spoke for itself. The Court acted to uphold limits on executive power, preserving the Senate’s dignity in the all-important confirmation process and sending the message that the usurpation of the Senate’s constitutional role will not be tolerated.

Click here for the U.S. Supreme Court decision, NLRB v. SW General, March 21, 2017

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