Rule of Law

Both candidates should care about this case

A case the U.S. Supreme Court is hearing Monday isn’t getting a lot of attention, but it should be. And the two people who should be paying the most attention are Hillary Clinton and Donald Trump.

The reason is simple: How the court decides NLRB v. Southwest General could have major implications for how quickly and effectively the next president can staff his or her administration.

When the Framers drafted the Constitution, they sought to improve upon the nation’s government under the Articles of Confederation. One of the great deficiencies of the Articles government was the absence of an independent executive branch to enforce the nation’s laws. To address that deficiency, the Constitution’s Framers established a single president and entrusted him with the responsibility to “take Care that the Laws be faithfully executed.”

The Framers also recognized that the president could not fulfill that responsibility without the support of others: as Alexander Hamilton wrote, “[t]he ingredients which constitute energy in the Executive are … an adequate provision for its support.” To ensure that the president had the support he needed, the Constitution provided for executive officers to assist the president. And while they gave the Senate a role in reviewing the most senior of those officers, the Framers also sought to make sure that the president could continue to make temporary appointments even when the Senate could not fulfil its advise-and-consent role.

Recognizing that the president must be able to staff executive branch agencies, Congress has long passed laws that give the president the authority to temporarily fill vacant offices that require Senate confirmation, while the Senate confirmation process is ongoing. The law that currently governs that process is the Federal Vacancies Reform Act. As Sen. Fred Thompson, one of its sponsors, noted at the time of its enactment, “it is important [when a vacancy in an important executive branch office occurs] to establish a process that permits the routine operation of the government to continue.” The proper interpretation of that statute is at issue in NLRB v. Southwest General.

The Federal Vacancies Reform Act provides a few different ways in which an office can be temporarily filled during an ongoing Senate confirmation. It first sets out a default rule — the first assistant to the office shall fill the position. But it also provides that the “President (and only the President)” may name others who meet certain criteria set out in the statute. As relevant here, the president may designate a person who has served in certain senior positions in the agency for at least 90 days in the year preceding the vacancy.

The law also sets out a limitation: “[n]otwithstanding [the provision providing the default rule], a person may not serve as an acting officer for an office under this section” if the president nominates that person to fill the vacant office permanently and that person “served in the position of first assistant” for less than 90 days during the year preceding the vacancy. In other words, the president cannot nominate someone to fill the office permanently and, at the same time, make that person the first assistant so that he or she also fills the vacancy while the nomination is pending. Congress’ concern was obvious: It did not want presidents to circumvent the advise-and-consent process, and so wanted a nominee to be able to fill a position temporarily only if that person had previously been serving in government.

Despite the fact that the provision setting out the limitation explicitly references the default rule, the U.S. Court of Appeals for the D.C. Circuit read it more broadly, holding that it also applies to the provisions of the law setting out the other categories of people the president may designate. According to the Court of Appeals, the president cannot designate a person who has served in a senior position in the agency for at least 90 days (but not as first assistant) to fill the office temporarily if he has also nominated that person to fill the office permanently.

The decision of the Court of Appeals is at odds with the law’s text and its history. It is at odds with the law’s text because the limitation applies, by its terms, only to the provision that establishes the default that first assistants temporarily fill the office. Had Congress wanted the limitation to apply more broadly, it could easily have said so. It did not.

The Court of Appeals’ interpretation is also at odds with the law’s history. Congress enacted the Federal Vacancies Reform Act because it believed that the executive branch was improperly circumventing the Senate’s role in the appointment process. To prevent that, Congress ensured that the president could not nominate someone from outside government to fill a vacancy and, at the same time, make that person first assistant so that person could serve in the position before he or she was confirmed.

The limitation at issue thus means exactly what it says: If someone has been nominated to fill a position permanently, the fact that he or she has also been made first assistant does not enable that person to temporarily fill the position if he or she was not first assistant for 90 days preceding the vacancy. Tellingly, during debates over the law, Sen. Thompson explicitly addressed the scope of the limitation and made clear that it only applied to the first assistant default rule.

The decision of the court of appeals was thus wrong. But just as troubling, it would, if upheld, significantly limit the president’s ability to temporarily staff important executive branch offices with the individuals the president believes best equipped to fill them on a permanent basis. Hillary Clinton and Donald Trump should both care about how readily they can staff executive agencies. But so should everyone who wants our government to function effectively.