Yesterday, the Supreme Court of the United States heard oral arguments in another case involving a power grab by the Obama Administration where it ignored the plain text of a statute.

Under the U.S. Constitution, presidential appointments can only be confirmed with the advice and consent of the senate. Realizing that government does not stop with a vacancy, congress enacted the Federal Vacancies Reform Act (FVRA) which allows the president, with restrictions, to temporarily fill vacancies.

One of the conditions of the FVRA is that the president cannot temporarily fill a position with the person nominated to permanently fill the position. Any acts by a person who is unlawfully holding the position are invalid.

In 2010, President Obama tapped Lafe Solomon to temporarily fill the vacancy as the National Labor Relations Board general counsel. President Obama then nominated Solomon to permanently fill the same position.

Southwest General challenged decisions made by Solomon as invalid due to him improperly holding the position while in the nomination process.

The Obama Administration argued the restriction does not apply to Solomon’s position based on an errant memo from the White House’s Office of Legal Counsel (OLC).

The DC Circuit Court of Appeals sided with Southwest General and the Obama Administration appealed to the U.S. Supreme Court.

The Buckeye Institute filed a brief with the Supreme Court supporting Southwest General. Our brief argues that the Administration’s interpretation turns the plain meaning of the statute on its head and OLC opinions have no binding authority, nor are they given the same deference as agency opinions.