U.S. justices to mull president’s power to nominate officials

By Robert Iafolla

WASHINGTON (Reuters) – The U.S. Supreme Court agreed on Monday to review a lower court decision that invalidated part of a former U.S. labor board official’s tenure, in a case that could curb the next president’s power to staff top positions in his or her administration.

The justices will hear an appeal of a 2015 decision by the U.S. Court of Appeals for the D.C. Circuit saying that once President Barack Obama nominated Lafe Solomon in 2011 to be general counsel of the National Labor Relations Board (NLRB), Solomon should not have continued to fill the position on a temporary or “acting” basis pending Senate confirmation.

The appeals court said a 1998 federal law bars anyone from serving in an acting role while they are the nominee unless they were previously the “first assistant” to that post.

The Supreme Court’s ruling in the case could decide if the White House can temporarily fill high-level administration positions with nominees waiting for confirmation, which could take on added importance if the next president faces protracted nomination battles in the Senate.

The case will give the Supreme Court a second chance to weigh in on executive branch authority related to filling positions at the NLRB. In 2014, the court in NLRB v. Noel Canning ruled that three 2013 appointments Obama made to the board while Congress was in recess were invalid.

Although Obama withdrew Solomon’s stalled nomination in 2013, about six current high-level officials are serving on an acting basis while they await a Senate vote, including officials at the Department of Health and Human Services and the Environmental Protection Agency, the NLRB said in its petition for review.

Former presidents Bill Clinton and George W. Bush also tapped officials to permanently fill the posts that they were manning in a temporary capacity, the NLRB said.

Clinton, Bush and Obama all relied on an interpretation of the Federal Vacancies Reform Act that viewed the restriction on first assistants as only applying to people who automatically become acting officers under a chain of command, rather than those nominated by the president, the NLRB said.

But the D.C. Circuit, as well as the 9th U.S. Circuit Court of Appeals in a 2016 ruling, have disagreed.

The case is NLRB v. SW General Inc, No. 15-1251, in the U.S. Supreme Court.

(Reporting by Robert Iafolla, Editing by Alexia Garamfalvi)