Buckeye files brief opposing Obama Administration’s attempt to circumvent the Senate

Sep 27, 2016



Under the U.S. Constitution, presidential appointments can be confirmed only 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 nominee. Any acts by a person who is unlawfully filling 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 Ambulance challenged decisions made by Solomon as invalid due to him improperly holding the position while in the nomination process.

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

The D.C. Circuit Court of Appeals sided with Southwest Ambulance and the Obama Administration has appealed to the U.S. Supreme Court.

The Buckeye Institute filed a brief with the Supreme Court supporting Southwest Ambulance. Our brief argues that the Obama 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.


UPDATE: The Supreme Court has decided 6-2 in favor of SW General. Click here to read the Supreme Court opinion.


Click here to download: National Labor Relations Board v. SW General, Inc.