Concurrence (Thomas)
Contents
SUPREME COURT OF THE UNITED STATES
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No. 15?1251
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NATIONAL LABOR RELATIONS BOARD, PETITIONER v. SW GENERAL, INC., dba SOUTHWEST AMBULANCE
on writ of certiorari to the united states court of appeals for the district of columbia circuit
[March 21, 2017]
Justice Thomas, concurring.
I join the opinion of the Court because it correctly interprets the Federal Vacancies Reform Act of 1998 (FVRA), 5 U.?S.?C. ?3345 et?seq. The dissent?s conclusion that the FVRA authorized the appointment in this case, however, implicates an important constitutional question that the Court?s interpretation does not: Whether directing Lafe Solomon to serve as acting general counsel of the National Labor Relations Board (NLRB or Board), without the advice and consent of the Senate, complied with the Constitution. I write separately to explain my view thatthe Appointments Clause likely prohibited Solomon?s appointment.
I
The Appointments Clause prescribes the exclusive process by which the President may appoint ?officers of the United States.? United States v. Germaine, 99 U.?S. 508, 510 (1879) ; accord, Buckley v. Valeo, 424 U.?S. 1, 132 (1976) (per curiam) (?[A]ll officers of the United States are to be appointed in accordance with the Clause .?.?.?. No class or type of officer is excluded because of its special functions?). It provides that the President
?shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise pro-vided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.? U.?S. Const., Art. II, ?2, cl.?2.
?[F]or purposes of appointment,? the Clause divides all officers into two classes??inferior officers? and noninferior officers, which we have long denominated ?principal? officers. Germaine, supra, at 509, 511. Principal officers must be appointed by the President by and with the advice and consent of the Senate. See Edmond v. United States, 520 U.?S. 651, 660 (1997) . That process ?is also the default manner of appointment for inferior officers.? Ibid. But the Clause provides a limited exception for the appointment of inferior officers: Congress may ?by Law? authorize the President, the head of an executive department, or a court of law to appoint inferior officers without the advice and consent of the Senate. Ibid.
The FVRA governs the process by which the President may temporarily fill a vacancy in an Executive Branch office normally occupied by an officer of the United States. As relevant in this case, when a vacancy arises, the President may ?direct? an official to ?perform the functions and duties of the office temporarily.? 5 U.?S.?C. ??3345(a)(2), (3). That official may be an officer previously appointed by the President and confirmed by the Senate to any office, or certain high-ranking employees of the agency in which the vacancy arose. Ibid. The FVRA does not, however, require the President to seek the advice and consent of the Senate before directing the official to perform the functions of the vacant office.
When the President ?direct[s]? someone to serve as an officer pursuant to the FVRA, he is ?appoint[ing]? that person as an ?officer of the United States? within the meaning of the Appointments Clause. Around the time of the framing, the verb ?appoint? meant ?[t]o establish anything by decree,? 1 S. Johnson, A Dictionary of the English Language (def. 3) (6th ed. 1785); T. Sheridan, A Complete Dictionary of the English Language (To Appoint) (6th ed. 1796), or ?[t]o allot, assign, or designate,? 1 N. Webster, An American Dictionary of the English Language (def. 3) (1828). When the President ?direct[s]? a person to serve as an acting officer, he is ?assign[ing]? or ?designat[ing]? that person to serve as an officer.
The FVRA authorizes the President to appoint both inferior and principal officers without first obtaining the advice and consent of the Senate. Appointing inferior officers in this manner raises no constitutional problems. That is because the Appointments Clause authorizes Congress to enact ?Law[s],? like the FVRA, ?vest[ing] the Appointment of such inferior Officers .?.?. in the President alone.? Appointing principal officers under the FVRA, however, raises grave constitutional concerns because the Appointments Clause forbids the President to appoint principal officers without the advice and consent of the Senate.
II
Because we interpret the FVRA to forbid Solomon?s appointment in this case, we need not confront these concerns. But the dissent?s contrary interpretation necessarily raises the question whether that appointment complied with the requirements of the Appointments Clause. That inquiry turns on two considerations: (1) whether the general counsel of the NLRB is an ?Officer of the United States? within the meaning of the Appointments Clause and, if so, (2) whether he is a principal officer who can be appointed only by and with the advice and consent of the Senate.1 ?In my view, the general counsel plainly is an officer of the United States. I also think he is likely a principal officer.
A
As an initial matter, the NLRB?s general counsel is an ?officer of the United States? whose appointment is governed by the Appointments Clause. ?Extensive evidence suggests? that, at the time of the framing, this phrase was understood to encompass ?all federal officials with responsibility for an ongoing statutory duty.? Mascott, Whoare ?Officers of the United States?? 70 Stan. L.?Rev.(forthcoming 2017) (manuscript, at 74, online at https://ssrn.com/abstract=2918952 (as last visited Mar. 17, 2017)); see also Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.?L.?C. 73, 77 (2007) (an officer of the United States was originally understood to be an official who ?hold[s] a position with delegated sovereign authority? and whose office was ???continuing,??? rather than ???incidental??? or ?ad?hoc?). And this Court has previously held that an ?Officer of the United States? is ?any appointee exercising significant authority pursuant to the laws of the United States.? Buckley, 424 U.?S., at 126; see also Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.?S. 477 ?540 (2010) (Breyer, J., dissenting) (collecting cases addressing who counts as an officer).
The general counsel is an officer of the United States under both the probable original meaning of the Clause and this Court?s precedents. He is charged by statute with carrying out significant duties. He ?exercise[s] general supervision over all attorneys employed by the Board .?.?. and over the officers and employees in the regional of-fices.? 29 U.?S.?C. ?153(d). He has ?final authority, on behalf of the Board, in respect of the investigation of charges and issuances of complaints .?.?. and in respect of the prosecution of such complaints before the Board.? Ibid. The general counsel is effectively the Nation?s labor-law prosecutor and is therefore an officer of the United States. See Edmond, 520 U.?S., at 666 (treating the general counsel of the Department of Transportation as an officer).
B
Although a closer question, the general counsel also is likely a principal officer. In Edmond, we explained that an ???inferior??? officer is one ?whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.? Id., at 663. That view is consistent with the original meaning of the term and with the practices of the early Congresses. See id., at 663?664; Morrison v. Olson, 487 U.?S. 654 ?721 (1988) (Scalia, J., dissenting); see also, e.g., Sheridan, supra, (Inferiour); 1 Johnson, supra, (Inferiour (def. 2)); 1 Webster, supra, (Inferior).2 ?By contrast, a principal officer is one who has no superior other than the President.
The general counsel of the NLRB appears to satisfy that definition. Before 1947, the Board ?controlled not only the filing of complaints, but their prosecution and adjudication? as well. NLRB v. Food & Commercial Workers, 484 U.?S. 112, 117 (1987) . The Labor Management Relations Act, 1947, ch. 120, 61Stat. 136, however, ?effected an important change? in the NLRB?s structure by ?separat[ing] the prosecuting from the adjudicating function, to place the former in the General Counsel, and to make him an independent official appointed by the President.? Lewis v. NLRB, 357 U.?S. 10 , n.?10 (1958). Congress thus separated the NLRB into ?two independent branches,? Food & Commercial Workers, 484 U.?S., at 129, andmade the general counsel ?independent of the Board?s supervision and review,? id., at 118; see also id., at 129 (Congress ?decided to place the General Counsel within the agency, but to make the office independent of the Board?s authority?). Moreover, the general counsel?s prosecutorial decisions are unreviewable by either the Board or the Judiciary. NLRB v. Sears, Roebuck & Co., 421 U.?S. 132, 138 (1975) ; Vaca v. Sipes, 386 U.?S. 171, 182 (1967) . Although the Board has power to define some of the general counsel?s duties, see 29 U.?S.?C. ?153(d), and the general counsel represents the Board in certain judicial proceedings, see Higgins, Labor Czars?Commissars?Keeping Women in the Kitchen?The Purpose and Effects of the Administrative Changes Made by Taft-Hartley, 47 Cath. U. L.?Rev. 941, 967 (1998), the statute does not give the Board the power to remove him or otherwise generally to control his activities, see Edmond, supra, at 664 (?The power to remove officers, we have recognized, is a powerful tool for control?); see also Free Enterprise Fund, 561 U.?S., at 510 (holding that executive officials were inferior officers in large part because they were subject to a superior?s removal). Because it appears that the general counsel answers to no officer inferior to the President, he is likely a principal officer.3 ?Accordingly, the President likely could not lawfully have appointed Solomon to serve in thatrole without first obtaining the advice and consent of the Senate.
III
I recognize that the ?burdens on governmental processes? that the Appointments Clause imposes may ?often seem clumsy, inefficient, even unworkable.? INS v. Chadha, 462 U.?S. 919, 959 (1983) . Granting the President unilateral power to fill vacancies in high offices might contribute to more efficient Government. But the Appointments Clause is not an empty formality. Although theFramers recognized the potential value of leaving the selection of officers to ?one man of discernment? rather than to a fractious, multimember body, see The Federalist No. 76, p. 510 (J. Cooke ed., 1961), they also recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the Government, see id., at 513; 3 J. Story, Commentaries on the Constitution of the United States ?1524, p. 376 (1833). The Framers ?had lived under a form of government that permitted arbitrary governmental acts to go unchecked,? Chadha, supra, at 959, and they knew that liberty could be preserved only by ensuring that the powers of Government would never be consolidated in one body, see The Federalist No. 51, p. 348. They thus empowered the Senate to confirm principal officers on the view that ?the necessity of its co-operation in the business of appointments will be a considerable and salutary restraint upon the conduct of? the President. The Federalist No. 76, at 514; 3 Story, supra, ?1525, at 376?377. We cannot cast aside the separation of powers and the Appointments Clause?s important check on executive power for the sake of administrative convenience or efficiency. See Bowsher v. Synar, 478 U.?S. 714, 736 (1986) .
That the Senate voluntarily relinquished its advice-and-consent power in the FVRA does not make this end-run around the Appointments Clause constitutional. The Clause, like all of the Constitution?s structural provisions, ?is designed first and foremost not to look after the interests of the respective branches, but to protect individual liberty.? NLRB v. Noel Canning, 573 U.?S. ___, ___ (2014) (Scalia, J., concurring in judgment) (slip op., at 3) (internal quotation marks and bracket omitted). It is therefore irrelevant that ?the encroached-upon branch approves the encroachment.? Free Enterprise Fund, supra, at 497 (internal quotation marks omitted). ?Neither Congress nor the Executive can agree to waive? the structural provisions of the Constitution any more than they could agree to disregard an enumerated right. Freytag v. Commissioner, 501 U.?S. 868, 880 (1991) . The Judicial Branch must be most vigilant in guarding the separation between the political powers precisely when those powers collude to avoid the structural constraints of our Constitution.
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Courts inevitably will be called upon to determine whether the Constitution permits the appointment of principal officers pursuant to the FVRA without Senate confirmation. But here, the proper interpretation of the FVRA bars the appointment.