NLRB v. SW General, Inc.
U.S. Supreme Court · decided March 21, 2017 · Supreme Court Database (Spaeth)
- Decided
- March 21, 2017
- Term
- October Term 2016
- Vote
- 6–2
- Majority author
- Justice Roberts
- Issue area
- Miscellaneous
- Disposition
- Affirmed
- Outcome
- Petitioning party lost
- Ideological direction
- Conservative
Opinion excerpt
Chief Justice ROBERTS delivered the opinion of the Court. Article II of the Constitution requires that the President obtain "the Advice and Consent of the Senate" before appointing "Officers of the United States." § 2, cl. 2. Given this provision, the responsibilities of an office requiring Presidential appointment and Senate confirmation-known as a "PAS" office-may go unperformed if a vacancy arises and the President and Senate cannot promptly agree on a replacement. Congress has long accounted for this reality by authorizing the President to direct certain officials to temporarily carry out the duties of a vacant PAS office in an acting capacity, without Senate confirmation. The Federal Vacancies Reform Act of 1998 (FVRA), 5 U.S.C. § 3345 et seq., is the latest version of that authorization. Section 3345(a) of the FVRA authorizes three classes of Government officials to become acting officers. The general rule is that the first assistant to a vacant office shall become the acting officer. The President may override that default rule by directing either a person serving in a different PAS office or a senior employee within the relevant agency to become the acting officer instead. The FVRA, however, prohibits certain persons from serving as acting officers if the President has nominated them to fill the vacant office permanently. The question presented is whether that…
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