Ending Abuse of Presidential Appointments - Once and for All
Sept. 23, 2016
Today, Southeastern Legal Foundation (SLF) filed an amicus brief with the U.S. Supreme Court in the case NLRB v. SW General. In its brief, SLF urged the Court to preserve the separation of powers in interpreting the Federal Vacancies Reform Act of 1998, which carefully details when a presidential appointee may serve as an acting official before, during, and after the Senate confirmation process. The past three presidents have been following a convoluted and improper interpretation of that law, allowing their future nominees to serve as acting officials once nominated, which is what the Act explicitly disallows.
The Senate, in writing the law, didn’t want the President’s eventual nominee to be at her post early without Senate approval. That situation allows for an unchecked implementation of the President’s agenda. Executive overreach like this was a top-of-mind concern for the Framers of our Constitution, because executive appointments were “deemed the most insidious and powerful weapon of 18th Century despotism,” in the words of the Supreme Court in Freytag v. Commissioner.
Today, individuals serving in violation of the FVRA hold posts of great access to power with incredible decision-making authority. Some of the individuals who have served and currently are serving in violation of the FVRA include deputy directors of the departments of Commerce, Justice, Energy, Education, and Health and Human Services, and even deputy director of the CIA.
Those who are second in command at the EPA, in charge of crafting and implementing regulations affecting millions of Americans, are improperly in their posts, as well. Even individuals second in command for entire branches of the military are serving and have served in violation of the FVRA.
The Supreme Court has previously held this Administration’s feet to the fire for the improper use of executive appointments when President Obama was found to have abused the Recess Appointments Clause, which presented a very separate issue from this case. Even though the misuse of the FVRA over the past three administrations spreads the blame, it is time for the executive’s power grab to stop.
U.S. Supreme Court Amicus Brief, NLRB, Sept. 23, 2016