U.S. Supreme Court Curbs President’s Interim Appointment Power

Updated on
  • Supreme Court rules 6-2, with Sotomayor, Ginsburg dissenting
  • Ruling raises questions about decisions made across government

The U.S. Supreme Court curbed the president’s power to appoint someone to fill a top government post temporarily while the person is awaiting Senate confirmation to do the job permanently.

Voting 6-2, the court ruled that under a 1998 law nominees can fill a position on an acting basis only if they were previously serving for 90 days as the top assistant to the post.

The ruling overturns what former President Barack Obama’s administration contended had been the common understanding of a 1998 statute covering federal vacancies. President Donald Trump’s administration hadn’t taken a position on the case.

The case stemmed from a complaint issued by the National Labor Relations Board against SW General Inc., an ambulance-services unit of Envision Healthcare Corp. The board accused SW General of committing an unfair labor practice by unilaterally discontinuing longevity payments to employees.

The company challenged the complaint by saying Lafe Solomon, then the NLRB’s acting general counsel, couldn’t legally serve in that capacity because he had been nominated by Obama to fill the position permanently. Solomon had previously been the director of a different office within the NLRB.

The federal appeals court in Washington agreed with the company and threw out the complaint, saying Solomon’s temporary appointment ran afoul of the 1998 Federal Vacancies Reform Act.

The Supreme Court Tuesday upheld that decision, with Chief Justice John Roberts writing the majority opinion. Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented.

The Supreme Court decision raises new questions about decisions made across the federal government by temporary appointees as far back as the late 1990s. When it filed its appeal last year, the Obama administration said the case might affect the actions of a half-dozen appointees who were currently serving, as well as an unspecified number of people who previously held temporary positions.

Among the agencies potentially affected are the Environmental Protection Agency, the Justice Department, the Defense Department and the Export-Import Bank.

The case is NLRB v. SW General, 15-1251.

(Adds breakdown of court in sixth paragraph.)
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