“We cannot cast aside the separation of powers and the Appointments Clauses important check on executive power for the sake of administrative convenience or efficiency. That the Senate voluntarily relinquished its advice-and-consent power in the [Federal Vacancies Reform Act] does not make this end-run around the Appointments Clause constitutional.” — Justice Clarence Thomas, concurring opinion, NLRB v. SW General, Inc. (2017)
Are you sure that wasn’t a dissenting opinion from Thomas? Because it doesn’t seem to jibe with this below.
Because in the majority opinion, written by Chief Justice Roberts, he says this is OK.
“The Supreme Court did issue a ruling related to the Vacancies Reform Act in 2017. In his majority opinion in National Labor Relations Board V. SW General, Chief Justice John Roberts reviewed the acts history. 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, Roberts said, in a dispute over acting officers becoming nominees to the same office. The Court didnt discuss exceptions to the acts language about how a position became vacant.”
Doesn’t sound like SCOTUS thinks this law is unconstitutional. Or am I missing something?
Thomas' opinion was a concurring opinion, not the majority opinion. He agreed with the finding of the court about the legality of appointing that guy to the NLRB but wanted to lay out a case against the constitutionality of the FVRA as it pertains to principal officers (only) under the Appointments Clause.
His argument is absolutely sound. It's one thing to use the FVRA to appoint someone to act as an "inferior officer" in an acting capacity, but it should not be used to fill a "principal officer" role under any circumstances because the Appointments Clause does not allow that.