Obama isn’t there anymore to make the courts swing his way. Now the truth comes out. Is this ruling a blow to Obama? Or is it just a little too late?
The Supreme Court ruled that President Obama violated the Constitution when he maintained an acting agency appointment after the Senate refused to confirm him.
The court ruled Tuesday that Obama appointee Lafe Solomon illegally served as acting general counsel to the National Labor Relations Board from 2010 to 2013. Solomon, who once violated the agency’s ethics rules, should have vacated the position in accordance with the Federal Vacancies Reform Act of 1998 (FVRA) after the Senate refused to take up his nomination to serve as permanent general counsel in 2011, the court found in a 6-2 opinion authored by Chief Justice John Roberts. The appointment was an “end-run around” the Constitution.
“We cannot cast aside the separation of powers and the Appointments Clause’s important check on executive power for the sake of administrative convenience or efficiency,” the majority ruled.
The case came to the court after the NLRB filed unfair labor practice charges against an Arizona-based ambulance service, Southwest General, following union complaints.
David Phippen, a management-side labor attorney at the firm Constangy, Brooks, Smith & Prophete, said the decision clarifies the meaning of the FVRA.
“The case is a reminder that the language of the FVRA statute means what it says and must be followed, not ignored by Presidents, as appeared to be the case here,” Phippen said in an email. “The decision … appe
ars to make it somewhat more difficult for Presidents to put ‘her or his people’ into important agency positions unilaterally, i.e., without approval of the Senate.”
The decision came less than five years after the court unanimously ruled that Obama unconstitutionally recess-appointed two Democratic attorneys as NLRB board members while the Senate was still in session. That decision allowed employers and unions to challenge more than 1,000 decisions issued during those board members’ brief tenure at the agency. The NLRB reheard dozens of cases as a result.