Executive Power at the Supreme Court

Democrats who cheered President Obama’s use of executive authority to end run Congress should now hope the Supreme Court rules against his excesses. Without reinforced guardrails, here comes President-elect Donald Trump.


On Monday, Nov 7, 2016 the Justices heard oral argument in NLRB v. SW General, challenging Mr. Obama’s appointment of Lafe Solomon to serve as acting General Counsel of the National Labor Relations Board. The Senate didn’t act on his nomination, but Mr. Obama still left him in the job to favor labor unions.

Under the 1998 Federal Vacancies Reform Act (FVRA), the President can appoint acting officers to fill executive-branch vacancies while their Senate confirmations are pending under certain conditions and subject to time limits. The statute grants a limited waiver to the Senate’s advice and consent power but preserves the Senate’s role under the Constitution’s Appointment’s Clause.

But Mr. Obama let Mr. Solomon serve in an acting capacity without Senate consent from June 2010 to November 2013. If the Court rules the appointment improper, the decisions Mr. Solomon made during that tenure will likely be invalidated, much like NLRB decisions were invalidated when a unanimous Court rejected President Obama’s non-recess recess appointments in NLRB v. Noel Canning (2014).

The Obama Administration argued that the practice should be allowed because Congress had not previously objected. Several Justices seemed skeptical. “There’s sort of an estoppel against Congress,” Chief Justice John Roberts noted, “if they don’t speak up in every instance where they think some prerogative or interpretation is being misapplied” and they are “deemed to have acquiesced in it.” He added that “I think it’s a very serious burden to impose on the legislative branch.”

“What would be the consequences if we affirm?” Justice Anthony Kennedy asked. “Your brief didn’t list a great parade of horribles. It seems to me that our system is quite capable of accommodating” a ruling on behalf of SW General, the business that sued the NLRB.

The decision will bear on Mr. Trump’s authority to pick people to fill vacancies while waiting for Congress to act on nominations. Who likes checks and balances now?

WSJ, Saturday, November 12, 2016


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