NLRB v. SW General

Posted: February 3, 2017 by beguide in Checks & Balances, Fantasy Supreme Court League, Federalism, Government Action, Governmental Agencies, Uncategorized

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WHAT HAPPENED:  SW General lost a case before the National Labor Relations Board, and instead of appealing (you know) the merits  of the case, SW General argued that the head attorney was appointed by President Obama unlawfully under the Federal Vacancies Reform Act.

WHY IS THIS BEFORE THE SUPREME COURT:  The Federal Vacancies Reform Act was intended as a way for the President to fill agency positions when Congress was being either (1) lazy or (2) assholes.  The FVRA states that the President can bypass Congress on appointments when the new appointee is the first assistant, or when the new appointee is a senior official within that agency.  The question for this case is whether or not the second half of that clause requires that the person to serve in the position ninety days before appointments, or if the ninety day waiting period only applies to first assistants.  SW General argues that it does apply, thus blocking Obama’s appointment to the NLRB, whereas the NLRB argues that it does not apply and the appointment was valid exercise of executive power.

WHAT ARE THE RAMIFICATIONS –  This case seems relevant to a much larger point about today’s government; however, this case will likely not have the effect that it could or should.  We are certainly having a moment right now where our government seems to be prioritizing grudges and power-grabs over actually doing their job and running the government.  This case is a great example of how political moves can cloud the proper and efficient organization of a government agency.  That being said, the FVRA doesn’t deal with Supreme Court justices, or executive orders, or health care, or impeachment proceedings, so all the things that you want this to resolve, it probably won’t.  The only interesting point here could be within the text of the opinion, as you can’t put it past the Court to include their own opinions within their decisions, either subtly or not-so subtly.  For example, a few months prior to the Obgefell v. Hodges decision which required universal recognition of same-sex marriage, the Supreme Court fought intensely about the due process right to get married in the case of Kerry v. Din.  The subtext of that case maybe wasn’t as clear at the time, but in hindsight, you can see an underlying subtext in the decision through the scope of something totally different.  Considering the Court is being treated like a 10 year-old at a child custody hearing, it wouldn’t be all the surprising to get some kind of temper tantrum.

ROOT FOR NLRB IF:  you hate the government right now.

ROOT FOR SW GENERAL IF:  you hated the government four months ago, but now things are pretty sweet.

PREDICTION:  SW General 5-3

WHAT HAPPENED:  SW General lost a case before the National Labor Relations Board, and instead of appealing (you know) the merits  of the case, SW General argued that the head attorney was appointed by President Obama unlawfully under the Federal Vacancies Reform Act.

WHY IS THIS BEFORE THE SUPREME COURT:  The Federal Vacancies Reform Act was intended as a way for the President to fill agency positions when Congress was being either (1) lazy or (2) assholes.  The FVRA states that the President can bypass Congress on appointments when the new appointee is the first assistant, or when the new appointee is a senior official within that agency.  The question for this case is whether or not the second half of that clause requires that the person to serve in the position ninety days before appointments, or if the ninety day waiting period only applies to first assistants.  SW General argues that it does apply, thus blocking Obamas appoint to the NLRB, whereas the NLRB argues that it does not apply and the appointment was valid exercise of executive power.

WHAT ARE THE RAMIFICATIONS –  This case seems relevant to a much larger point about today’s government; however, this case will likely not have the effect that it could or should.  We are certainly having a moment right now where our government seems to be prioritizing grudges and power-grabs over actually doing their job and running the government.  This case is a great example of how political moves can cloud the proper and efficient organization of a government agency.  That being said, the FVRA doesn’t deal with Supreme Court justices, or executive orders, or health care, or impeachment proceedings, so all the things that you want this to resolve, it probably won’t.  The only interesting point here could be within the text of the opinion, as you can’t put it past the Court to include their own opinions within their decisions, either subtly or not-so subtly.  For example, a few months prior to the Obgefell v. Hodges decision which required universal recognition of same-sex marriage, the Supreme Court fought intensely about the due process right to get married in the case of Kerry v. Din.  The subtext of that case maybe wasn’t as clear at the time, but in hindsight, you can see an underlying subtext in the decision through the scope of something totally different.  Considering the Court is being treated like a 10 year-old at a child custody hearing, it wouldn’t be all the surprising to get some kind of temper tantrum.

ROOT FOR NLRB IF:  you hate the government right now.

ROOT FOR SW GENERAL IF:  you hated the government four months ago, but now things are pretty sweet.

PREDICTION:  SW General 5-3

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