In a 6 - to - 2 ruling, the Supreme Court on Tuesday limited
the president ’ s ability to put certain high- level officials in
positions in an acting capacity while awaiting
confirmation by the Senate . (Jose Luis Magana/ AP )
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.
[ Supreme Court considers rules surrounding the
president 's picks for top jobs ]
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.
Man detained due to fabricated evidence can sue police
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 7 th 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.
Alabatvnews.
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