A Supreme Court ruling today could be a big problem for President Donald Trump because it limits the President’s power to temporarily fill government agency vacancies while nominees go through the confirmation process.
Although it involved a case filed by the Obama administration concerning a former acting general counsel to the National Labor Relations Board who was waiting to be confirmed for the job permanently (NLRB), it could make it much harder for the President to hire people in temporary positions.
The Supreme Court ruled by six to two that the appointment violated The Federal Vacancies Reform Act, which was passed in 1998, according to The Hill. The Obama administration had argued that the hiring of Lafe Solomon fell under an exemption in the law which says that a nominee can serve temporarily if they had served as a “first assistant” for at least 90 days to the official they would be succeeding.
The Obama administration had argued that the hiring of Lafe Solomon fell under an exemption in the law which says that a nominee can serve temporarily if they had served as a “first assistant” for at least 90 days to the official they would be succeeding.
President Obama had appointed Solomon in the Spring of 2010, but after his nomination was stalled in the Republican-majority Senate for two years, he withdrew the nomination. Solomon had been at the NLRB previously but in another area.
Chief Justice John Roberts wrote for the majority of the justices. He argued Solomon’s time at the NLRB did not qualify for the exemption.
“This does not mean that the duties of general counsel to the NLRB needed to go unperformed,” Roberts wrote. “The president could have appointed another person to serve as the acting officer in Solomon’s place.”
Roberts also said that despite the Obama assertion, this would not necessarily hinder future temporary appointments. He noted that since the law passed, 112 officials had served in an acting capacity while waiting for a permanent position.
The Justices who dissented were Ruth Bader Ginsburg and Sonia Sotomayor.
It would be ironic if Trump is hindered in making temporary appointments while many of his appointments remain stalled awaiting Senate confirmation. That is because the Republicans stalled numerous appointments while Obama was President, including Solomon, to the point it became a problem for the Administration.
Now a case that dates to the Obama era may be a new problem for Trump.