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Supreme Court to weigh arguments over 'acting' officials

Friday, November 4, 2016

By Amanda Reilly

The Supreme Court will hear arguments Monday over whether some nominees for federal jobs have been improperly "acting" in those positions.

At issue in National Labor Relations Board v. SW General Inc. is the extent that a nominee for a vacant post may serve temporarily in that job.

"I don't think of this as the Clean Power Plan or what the president can do with regard to relief from deportation in the immigration arena. This is a technical area. It's not going to be front-page news," said Anne Joseph O'Connell, a law professor at the University of California, Berkeley. "But it will matter."

The Obama administration says the case could upend the "settled understanding" of who can serve as an acting government official.

The AFL-CIO and Constitutional Accountability Center are supporting the administration in the case, while 14 states led by West Virginia are among the opponents of the government who have filed friends-of-the-court briefs.

The government is reaching "significantly beyond" merely providing stopgap measures to fill vacancies, the states told the high court.

The case is "critical to protecting the states against federal encroachment by preserving the Senate's constitutionally mandated advice and consent power," the states wrote in a brief.

The federal government is appealing the U.S. Court of Appeals for the District of Columbia Circuit's decision last year that found Lafe Solomon, the former acting general counsel of the National Labor Relations Board, had served in violation of the Federal Vacancies Reform Act (FVRA) after he was nominated for the job in 2011.

The D.C. Circuit ruled that an unfair labor practice complaint issued by NLRB after Solomon's nomination hadn't been authorized, but the court emphasized that its ruling was narrow and wouldn't "retroactively undermine a host of NLRB decisions."

In March, the 9th U.S. Circuit Court of Appeals issued a unanimous decision that found NLRB processed an unfair labor complaint against a tenant-support company because Solomon was serving in violation of the law.

The Supreme Court agreed in June to take up the government's petition.

Opponents of the administration say the unanimous D.C. Circuit ruling makes the vacancy law's language clear: The president cannot select the same person as both acting official and nominee unless that person is an experienced first assistant.

"It is clear that Congress crafted only a narrow exception ... in order to limit the danger of presidential circumvention," Sens. John McCain (R-Ariz.) and Thom Tillis (R-N.C.) wrote in an amicus brief filed in the court.

But the Obama administration says the lower-court ruling goes against the practice that's been in place through 100 presidential nominations and two decades of Senate confirmations.

Under the D.C. Circuit's decision, Stan Meiburg, who is serving as EPA's acting No. 2 official and whose nomination for the position is pending, is among the dozens of officials that could be found to have served illegally over the past two decades, the Justice Department told the Supreme Court.

The lower court ruling "would undermine the statute's goal of enabling service by the career officials that Members of Congress had described as especially qualified — by preventing such individuals from serving if the President also regarded them as most qualified to occupy the ... position at issue on a permanent basis," the Department of Justice says.

Senate Environment and Public Works Chairman Jim Inhofe (R-Okla.) has already used the court decision to question whether Meiburg is eligible to be on the job at EPA (Greenwire, March 8).

In their court brief, McCain and Tillis told justices that just because the executive branch's practice is longstanding doesn't mean it is legal and that the court shouldn't read Congress' "silence in the face of occasional nominees who have improperly served" as acceptance.

O'Connell, the UC Berkeley professor who's an expert in government vacancies, predicted that justices in the court's liberal wing may give more weight to the settled practice and conservatives may opt for a more straightforward interpretation of the statutory text.

"There are justices who disagree about what role longstanding practice should play. We saw this in the recess appointments case," said O'Connell, referring to the 2014 ruling that Obama exceeded his constitutional authority when he named three to NLRB when the Senate was not technically in recess.

The Supreme Court likely won't rule in the case until early next year. O'Connell said that the ruling will likely guide future administrations on who can be appointed to serve in acting positions.

The broader problem, she said, is the Senate's inability to confirm nominees.

"If you look at the EPA and other agencies, there are such delays in getting confirmed people into these positions," she said. "If we have a divided government, I think that the confirmation delays will only get worse."