On the Eve of an Abnormal Election, the High Court Strives for Normalcy

Defying the tenor of the 2016 election, during a case over the president’s power to appoint temporary heads of agencies, the Supreme Court tries to function as it should.

Gary Cameron / Reuters

The U.S. Supreme Court chamber sometimes seems like dreamland, a place beyond time where noises are muffled and the light is gentle, where judges are noble and kind and advocates courteous and forthright.

Yet even in dreamland the cares of day appear, often in disguised or distorted form, and words that mean one thing can also, on waking, mean something else.

On the Monday before the presidential election, dreamland calmly heard a case implicating an issue that may loom large after the vote: when can the president install his or her choice as an important “acting” federal official while waiting for Senate confirmation—confirmation that may never come?

Readers may see the question through a constitutional lens, after years of din about “executive overreach.” The justices—all eight of them lined up in chairs rearranged to look as if there is no gap where Justice Antonin Scalia once sat—must also at least dimly see it through a present lens. If the election results go one particular way, they are hearing from the world outside, they may go four or even eight years without a justice for that vacant seat. Indeed, even if death or resignation visit One First St. N.E. again, one prominent voice on the right recently said, the Senate could “literally let the Supreme Court die out.” Such a partisan blockade could easily extend to cabinet choices of a disfavored new president, until the government itself—or at least that part of it that makes policy—grinds to a halt.

But no such quotidian concerns sullied the air of dreamland Monday.  National Labor Relations Board v. SW General, Inc. is not a case about a president’s constitutional authority. Instead, it concerns a statute called the Federal Vacancies Reform Act of 1998, passed during a spat between a President, who wished to appoint an Asian-American civil rights lawyer to a job at the Department of Justice, and a Senate majority determined to block him. Bill Clinton’s nominee, Bill Lann Lee, had been an attorney for both the Asian American Legal Defense and Education Fund and the NAACP Legal Defense and Education Fund. Clinton named him to be Assistant Attorney General for Civil Rights.

As with most significant policy jobs, that post is a “PAS”—an acronym meaning that a presidential appointment must be confirmed by the Senate. Not surprisingly, Lee’s views on civil rights did not quite gee-haw with those of Senate Judiciary Chair Strom Thurmond, who once ran for president as a segregationist, and the committee refused to advance the nomination. In response, Clinton named Lee to be the acting first assistant AG for Civil Rights. The current acting AG then relinquished the position hours later, and Lee became acting assistant.

Nettled by being thus outmaneuvered, Senators decided that the law governing  “acting” positions must be reformed. Under the FVRA, an “acting” position can be given to three types of people: in ordinary cases, the current “first assistant” automatically becomes “acting”; if the president chooses, however, he can pick another agency official who has already been confirmed to a different PAS post, or any high-level agency appointee who has worked at the agency for more than 90 days.  In any case, an “acting” official has a 210-day time limit on service—though that can be extended in certain circumstances.

There is a snapper: the statute’s next section then says that “notwithstanding” the provision for “first assistants,” no “person” can serve as “acting official” if they’ve not been first assistant before—or if they have been “first assistant” for less than 90 days—and the president has nominated them for the job.

This is designed to prevent the Bill Lann Lee scenario, where a president sneaks his nominee into the job while fighting the Senate for confirmation. So it could apply only to “first assistants”--they need to be genuine, it seems to say, or they can’t be nominated. But the language can easily be read to say something more—namely that no one who has never been first assistant can be “acting” and nominated too. If an appointment violates that rule, the official’s acts shall be “void ab initio,” or invalid from the outset.

In 2010, the General Counsel of the National Labor Relations Board resigned. President Obama named career official Lafe Solomon (who was not “first assistant”) to serve as “acting.” As the 210-day time clock ran out, Obama nominated Solomon for the permanent job. The Senate rejected his nomination. (Eventually the Senate confirmed another nominee.)

So—were Solomon’s acts as general counsel valid? The statute may be saying that no one but an established “first assistant” can be “acting” and also be the nominee; or (the government contends) it could only be aimed at forbidding short-time “first assistants” from being both.  It’s an intricate question of statutory interpretation, and a reader whose eyes glaze can be forgiven. I am trying to hit only the high spots; but it’s an important question because the NLRB general counsel is the official who issues orders against employers finding that they had engaged in illegal “unfair labor practices.”

Solomon issued such an order against SW General, an ambulance service in Arizona. SW General has contested the order as invalid. Solomon, though a career official, was not the “first assistant,” they argue. Thus he cannot be both the “acting” general counsel and the nominee to be permanent general counsel. The D.C. Circuit Court of Appeals decided that the statute means what SW General says it means. (For those scoring at home, the panel consisted of one George H.W. Bush appointee and two Barack Obama appointees.) The government asked the high court to review it.

There are a number of ways to approach a statutory question like this. A statute is made up of words, and if it is clear then a court is supposed to follow it. If it’s unclear, then courts look to a variety of things, including its history and other interpretations of it, and (though some justices refuse to use this) its “legislative history,” meaning the committee reports and floor debates when it was adopted.

The government points out that the executive branch has read the statute its way since the FVRA was passed. SW General insists the plain text supports its view.

The justices seemed skeptical of the government’s reading. Justice Elena Kagan, the master of the homely metaphor, took Acting Solicitor General Ian Gershengorn (in case you’re wondering, he was “first assistant” to former Solicitor General Donald Verilli before Verilli resigned) out for an imaginary lunch:

I'm talking to my waiter, and I place three orders. I say, number 1, I'll have the house salad. Number two, I'll have the steak. Number three, I'll have the fruit cup. And then I tell the waiter, notwithstanding order number three, I can't eat anything with strawberries. So on your theory, the waiter could bring me a house salad with strawberries in it, and that seems to me a quite odd interpretation of what's a pretty clear instruction: No strawberries.

Gershengorn replied that the meaning of her order might be different if she ate at the restaurant every day and the waiters knew she actually meant only “no strawberries in my fruit cup.” His argument is that presidents of both parties have read the statute to allow appointments like Solomon’s—the GAO has not firmly opposed this, and Congress has acquiesced.

Justice Samuel Alito suggested it would make more sense “[i]f I were to say to the waiter, ‘You may bring me the soup of the day, but you may not bring me soup that contains shellfish because I'm allergic to it’?”

Breyer tried to banish the restaurant metaphor to point out the practical problems faced by presidents who must suddenly replace key officials. “I will also assume that for every chef salad there is a countervailing strawberry shortcake; all right?” he said. “So --so everything balances out.” Then he asked SW General’s lawyer, rising conservative star lawyer Shay Dvoretzky, to explain to him why anyone would write a statute that eliminated not only the short-time faux assistant but the many highly qualified people already working at the agency. “I would just wonder, were I from Mars,” Breyer asked, “what’s the point of having such a statute?”

The real reason the statute was written, Breyer suggested, was to eliminate the Bill Lann Lee problem—and only that. Dvoretzky replied that Congress wanted to prevent anyone—no matter how qualified—from taking over a specific policy area when Congress had not approved the appointment. Even previously confirmed nominees wouldn’t be suitable, he told Justice Ruth Bader Ginsburg. “Senate confirmation for one position is not fungible with Senate confirmation for another.”

The most vivid moment of argument came from a question by Justice Anthony Kennedy. Perhaps because he wasn’t hungry for steak or shellfish, he asked Gershengorn: “What would be the consequences if we affirm?” He was musing about the increased need for presidents to consult Congress to get their favored nominees confirmed. Kennedy was insouciant: “It seems to me that our system is quite capable of accommodating” the no-acting--and nomination rule.

No  one in the dreamy courtroom gave a hollow laugh at the notion that “our system” can accommodate even one more tiny strain. (“During the oral argument in King v. Burwell, the 2015 case that addressed a statutory ambiguity that could have killed Obamacare, Justice Antonin Scalia had suggested that Congress could fix any flaws. “This Congress?” Verilli asked, drawing laughs. There was no comedy Monday. And that, perhaps, was what gave Monday’s decorous proceedings their dreamlike air. Everyone was kind to each other. The lawyers were little short of brilliant, and the justices, for one day at least, put swords in scabbards and pondered a law-nerd problem.

And for one shining hour, we in the courtroom found ourselves in a world where problems can be solved, and where Congress, courts and president can all . . . just get along.