The Supreme Court on Tuesday made it more difficult for the president to quickly fill vacant top government jobs in a case centered on the appointment powers of the executive.
In a 6-to-2 ruling, the court limited the president’s ability to put certain high-level officials in positions in an acting capacity while awaiting confirmation by the Senate.
The court was reviewing the scope of a federal law intended to prevent presidents from temporarily slipping someone into a top position to circumvent the Senate’s process for reviewing an appointment to the permanent post.
The majority rejected the government’s view that the Federal Vacancies Reform Act of 1998 applied only to people serving in the role of “first assistant” and not to other officials. The statute, the court said, prohibits anyone who has been nominated to lead a federal agency from performing the job in an acting capacity, according to the majority opinion written by Chief Justice John G. Roberts Jr.
During oral arguments in November over an appointment to the National Labor Relations Board, the Obama administration pointed out that three presidents had made more than 100 appointments under the government’s interpretation of the law.
Roberts rejected the significance of the statistics, noting those nominations accounted for less than 2 percent of the thousands of positions the Senate has considered. Just because Congress has not objected, Roberts wrote, did not make the government’s reading of the law correct.
“Congress’s failure to speak up does not fairly imply that it has acquiesced in the board’s interpretation,” Roberts wrote.
Justices Sonia Sotomayor and Ruth Bader Ginsburg disagreed, finding that the law was not intended to tie the hands of the president from temporarily appointing senior government officials and also nominating them to the permanent position.
“The court gives the provision a broader reach than the text can bear with no support from the history of, or practice under, the [law],” Sotomayor wrote in her dissent that Ginsburg joined.
The Trump administration appears to have taken note of the dispute even before the opinion was issued Tuesday. Since his nomination to the solicitor general’s post, Noel Francisco has been serving as a senior adviser to the Justice Department’s associate attorney general. Another attorney, Jeffrey B. Wall, was named acting solicitor general.
The case dates to June 2010 when President Obama tapped Lafe Solomon to serve temporarily as acting general counsel of the National Labor Relations Board, the agency that enforces labor laws.
The law says that the “first assistant” to the position could take over on a temporary basis, but that such a person cannot serve both as acting and the nominee unless he or she has served for 90 days as first assistant.
Solomon had not served as the first assistant to the position, and Obama nominated him to the job permanently.
A company against which the board had issued an unfair-labor-practice ruling sued, saying Solomon lacked authority to issue the ruling because the law prevented him from being both the acting general counsel and the nominee. The U.S. Court of Appeals for the D.C. Circuit agreed with the Arizona-based ambulance company, SW General Inc.,
As for Solomon, the Senate twice refused to confirm him, and the position eventually went to someone else.
The Supreme Court noted in its opinion Tuesday that the president could have appointed another person to serve temporarily in Solomon’s place, but did not.
In a second opinion issued Tuesday, the court allowed a lawsuit to go forward against members of a suburban Illinois police department.
Elijah Manuel was detained in 2011 for nearly seven weeks after police falsely asserted he was carrying the illegal drug ecstasy in a vitamin bottle. Officers dragged Manuel from his car, called him a racial slur and kicked and punched him on the ground.
In a 6-to-2 opinion, the court said Manuel could sue the City of Joliet, Ill., and police officers over his pretrial detention, and that his confinement on made-up evidence violated Fourth Amendment protections against unreasonable seizures.
The Fourth Amendment “fits Manuel’s claim, as hand in glove,” according to the majority opinion written by Justice Elena Kagan.
The ruling sends the case back to the U.S. Court of Appeals for the 7th Circuit.
Justice Samuel A. Alito Jr., joined by Justice Clarence Thomas, dissented, writing that the majority “stretches the concept of seizure much too far.”
The cases are National Labor Relations Board v. SW General Inc. and Manuel v. City of Joliet, Ill.
Robert Barnes contributed to this report.