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To: chaosagent
The 2017 case didn't hinge on the constitutionality of the Federal Vacancies Reform Act. The NLRB appointment was ruled illegal on merit under the FVRA for other reasons -- namely (I believe), that the guy who was appointed to serve as the NLRB chief counsel in an "acting" capacity was the same one who had previously been nominated to that position in a permanent capacity.

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.

51 posted on 11/20/2018 3:43:21 PM PST by Alberta's Child ("The Russians escaped while we weren't watching them ... like Russians will.")
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To: Alberta's Child

So when Roberts said this in that opinion,

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,

he was wrong, or what? Isn’t this exactly what was done.


54 posted on 11/20/2018 3:51:02 PM PST by chaosagent (Remember, no matter how you slice it, forbidden fruit still tastes the sweetest!)
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