Supreme Court hears argument on president’s power to fill agency vacancies

The US Supreme Court [official website] heard oral argument [day call, PDF] Monday in a National Labor Relations Board (NLRB) [official website] case that will impact the president’s power to temporarily fill vacant agency positions. [transcript, PDF] began as an unfair labor practice charge against SW General, but SW General argued that the charge was invalid because NLRB’s general counsel was incorrectly serving in an “acting” capacity [SCOTUSblog backgrounder]. Applying the Federal Vacancies Reform Act (FVRA) [text, PDF], SW General argues that someone nominated by the president to permanently fill a vacant position can no longer serve in an acting capacity unless that person served as first assistant to the vacant position for at least 90 days in the prior year, and the US Court of Appeals for the District of Columbia Circuit [official website] agreed. However, the NLRB argues that the FVRA limitation being used only applies when a first assistant is nominated to permanently fill a position, not when a different senior official from that agency is nominated. SW General’s counsel and the government’s acting solicitor general both fielded plenty of questions, and the court appeared to be divided [Hill report].

The Supreme Court in 2014 heard a related case involving the president’s power to make recess appointments. The court held [JURIST report] that while the president does have authority to make appointments during a recess of the Senate, US President Barack Obama [official profile] overstepped his authority when he appointed three members to the NLRB in January 2012. Specifically, the court ruled these particular appointments were unconstitutional because the Senate’s recess was punctuated by pro forma sessions, during which no business was transacted.