Obama’s SCOTUS Appointees Split on Slapdown to His Power Grab

(Emily Larsen, Liberty Headlines) President Obama’s Supreme Court appointees split in a key decision on Tuesday, which reigned in the chief executive’s powers to direct nominees to carry out the duties of the office for which they are nominated, without Senate confirmation.

Elena Kagan photo

Elena Kagan Photo by Harvard Law Record (CC)

Justice Elena Kagan joined the majority, which found that Obama illegally directed Lafe Solomon to carry out the duties of National Labor Relations Review Board counsel, while Justice Sonia Sotomayor filed a dissenting opinion, siding with Justice Ruth Bader Ginsburg.

In the 6-2 decision, the Court found that Obama abused the Federal Vacancies Reform Act, passed by congress in 1998, by enlisting Solomon to serve as acting general counsel for the NRLB from 2011 to 2013, while also nominating him to serve in that position. The Senate declined to debate or vote on Solomon’s nomination confirmation numerous times during that period. Obama withdrew Solomon’s nomination later in 2013, submitted a new nomination, and the Senate approved the new nominee, Richard Griffin Jr.

The United States Constitution states that the President must get the “advice and consent of the Senate” for appointees for “Officers of the United States.” Often times there are many vacancies in these offices, and a designee will carry out the duties of the appointed office until the Senate confirms a nominee. The FVRA redefined the President’s limited authority to temporarily assign individuals to perform the functions of appointees, without getting approval from the Senate.


The disagreement between the majority and dissenting opinion came down to the meaning of a few subsections of FVRA, and whether the law allows those who were already “first assistants” to the vacant office to both serve as acting officers while also seeking permanent nomination to the post, or if other qualified officials who were not first assistants can also serve as acting officials while seeking nomination.

Chief Justice John Roberts wrote that the “glitch” in the argument the NRLB made “is of course the text of the statute.” Roberts noted, “the President could have appointed another person to serve as the acting officer in Solomon’s place. And he had a wide array of individuals to choose from…”

“Reading the provision more broadly to apply to all acting officials disregards the full text of the FVRA and finds no support in its purpose or history,” said Sotomayor, in her dissenting opinion.

Obama’s administration was plagued by the insistence that his actions went far beyond the constitutional power of the executive office.

“We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone,” Obama infamously said in 2014.

The Supreme Court’s NRLB and FVRA decision theoretically reigns in the “pen and phone” approach to the Presidency.

The NRLB was involved in a politically charged case against Boeing while Solomon served as acting council in 2011. Boeing, it said, could not be allowed to build a new plant in South Carolina rather than Washington state. The union representing 31,000 manufacturers at Boeing in Washington claimed the decision was retaliation against the union. Senate Republicans said the suit was a prime example of regulatory overreach. The NRLB eventually dropped the lawsuit after the union settled with Boeing.