In another case addressing the limits on a president to make appointments to executive positions requiring approval by the Senate before the Senate has acted, the Supreme Court has ruled that, with limited exceptions, persons nominated by the president to fill positions requiring Senate confirmation are not permitted to serve in an “acting capacity” for that same position while their nomination is pending.
The Court’s decision in NLRB v. SW General, Inc., No. 15-1251 (Mar. 21, 2017), interpreting the Federal Vacancies Reform Act of 1998 (FVRA), affirms a 2015 decision by the U.S. Court of Appeals for the District of Columbia Circuit holding that Lafe Solomon was ineligible to serve as the acting general counsel of the National Labor Relations Board (NLRB) while his nomination for that same position was being considered by the Senate.
The ruling in SW General comes on the heels of the Court’s 2014 landmark ruling in Noel Canning, another case involving appointments to the NLRB in which the Court ruled unanimously that President Obama exceeded his authority in 2012 when he made recess appointments of three individuals to serve as members of the NLRB.
Members of the Equal Employment Advisory Council (EEAC) can read more here.