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Supreme Court Limits President’s Power to Fill Vacant Posts 2017-03-23 04:12:40 Post No. 124525
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Supreme Court Limits President’s Power to Fill Vacant Posts 2017-03-23 04:12:40 Post No. 124525
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Supreme Court Limits President’s Power to Fill Vacant Posts
Anonymous
2017-03-23 04:12:40
Post No. 124525
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https://www.nytimes.com/2017/03/21/us/supreme-court-limits-presidents-power-to-fill-vacant-posts.html
>The Supreme Court on Tuesday restricted a president’s options in temporarily filling vacant government posts, a crucial matter when partisan tensions make it hard to win Senate confirmation for appointees.
>For hundreds of jobs requiring Senate confirmation, federal law allows presidents to appoint officials on an acting basis without lawmakers’ approval, to keep agencies running. At times, a president has then nominated the acting official to take over the post long-term.
>That practice violates the law, the Supreme Court ruled; a person who has been nominated for a position cannot hold the same job on an acting basis. That effectively makes it much harder for presidents to have their preferred people running federal agencies when — as was often the case during the Obama administration — the Senate delays voting on nominations, or does not act on them at all.
>The 6-to-2 decision, written by Chief Justice John G. Roberts Jr., means that 112 federal officials — under three presidents and in myriad agencies — served through invalid appointments since the current version of the law was enacted in 1998. Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented.
>In the majority opinion, the court did not address whether the ruling could also invalidate actions taken by those acting officials. But experts who have followed the case, National Labor Relations Board v. SW General, said such consequences should be limited.
>Generally, the time frame for challenging those officials’ actions has expired, and in many cases, “all that has to happen is for another, properly seated holder of that post to ratify the actions” retroactively, said Steven M. Swirsky of Epstein Becker & Green in New York.
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>“The bigger deal is how it impacts the ability to make appointments going forward,” he said.
>Usually, when a position becomes vacant, the first assistant to that post takes over on an acting basis, but the law allows the president to choose someone else, from a limited set of officials. For more than 15 years, the 1998 law was widely understood to bar the first assistant — but not any of the other qualified officials — from filling the higher role on an acting basis if that person was nominated for long-term appointment to that post.
>That the law was generally misinterpreted, and that no one raised objections, does not change its meaning, Justice Roberts wrote.
>In 2010, the general counsel of the labor board resigned, and President Barack Obama named Lafe Solomon, who was not the first assistant, as acting general counsel. A year later, the president nominated Mr. Solomon to be general counsel, and he continued to do the job on an acting basis as he awaited Senate confirmation. But for more than two years, the Senate did not act on the appointment, and it was withdrawn.
>In 2013, while Mr. Solomon’s appointment was awaiting Senate action, the labor board took on a complaint against SW General, an ambulance company, ultimately finding against the company in a pay dispute. The company later sued, arguing that the board’s action was invalid because Mr. Solomon’s appointment was invalid.
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>The Court of Appeals for the District of Columbia Circuit ruled in SW General’s favor, a decision that quickly had consequences for Mr. Obama’s ability to fill positions.
>In one prominent example, in January 2016, Eric K. Fanning stepped down as acting secretary of the Army so that the president could appoint him on a long-term basis. Mr. Fanning was not confirmed until that May.
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