Amicus Curiae Brief — Nat'l Labor Relations Bd. v. SW Gen., Inc., 136 S. Ct. 2489 (2016) (No. 15-1251)

No. 15-1251 OFFICE OF THE CLERK

—Satane Ca US]

FILED —

SEP 2 6 2016

In the Supreme Court of the United States

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

SW GENERAL., INC., DOING BUSINESS AS SOUTHWEST

AMBULANCE,

Respondent.

et _

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

ee

BRIEF OF AMICI CURIAE STATES OF WEST

VIRGINIA, ALABAMA, AND 12 OTHER STATES IN

SUPPORT OF RESPONDENT

LUTHER STRANGE PATRICK MORRISEY

Attorney General Attorney Genera!

ANDREW L. BRASHER ELBERT LIN

Solicitor General Solicitor Genera!

OFFICE OF THE ALABAMA THOMAS M. JOHNSON, JR.*

ATTORNEY GENERAI, Deputy Attorney Genera!

501 Washington Avenue ERICA N. PETERSON

Montgomery. AL 36130 Assistant Attorney

General

OFFICE OF THE WEST

VIRGINIA ATTORNEY

GENERAL

State Capitol, Building 1,

*Counsel of Record Room E-26

Charleston, WV 25305

Thomas.M.JohnsonJr@

wVago.gov

(304) 558-2021

[additional counsel listed at end]

QUESTION PRESENTED

Section 3345(b) of the Federal Vacancies Reform

Act, 5 U.S.C. § 3345, et seq. limits when a

permanent nominee for a vacant office may also

serve temporarily as the acting official. The question

presented is whether that limitation applies to al!

temporary officials serving under 5 U.S.C. § 3346(a),

or whether it is irrelevant to officials who assume

acting responsibilities under Subsection (aX2) and

(aX3).

ll

TABLE OF CONTENTS

IPS OMI csccccccecccccccoconscsccsccecsssoceseces i

ee He piceticcnseceescecscssocsenssresceseconneses ii

TAR Ce BA Re i acccccccccccccceccsscccosecssccsveeses ili

INTRODUCTION AND INTEREST OF AMICI

STITT inicscsichicidnhandaabiigbibeinensitienaicieeteninemiancnmmecetomssa 1

SUMMARY OF ARGUMENT .............::sssccsssserssesenes 3

EET iicciisicntictiatiniiinininaiintininaniienniinimenennnneneseemned 5

I. Separation Of Powers, Including The Advice

And Consent Power, Protects Both The

States And Individual Liberties........................... 5

Il. The Senate Frequently Exercises Its Advice

And Consent Power To Protect The States.......... g

III. The FVRA Should Be Interpreted To

Preclude NLRB’s Reading In Light Of

Significant Separation Of Powers And

Federaliam Concerns ........c.ccccccccssssccccccessesssceeese 16

A. The NLRB's Reading of the FVRA

Would Impermissibly Abdicate The

Senate’s Historic Advice and Consent

Power to the President. ...............cccccccceee 17

B. Congress Has Not Clearly Expressed An

Intent To Alter The Federal-State Balance

By Expanding The President’s Authority

To Install Nominees As Acting Officers........ 25

ee apuintcniscinrciccssstnqisennsdeasirminiaenteniaia 28

TABLE OF AUTHORITIES

Cases

Atascadero State Hosp. v. Scanion,

RE 25

Bond v. United States,

bE | ae passim

Bond v. United States,

EL a ee re oe 7

Chevron v. Nat. Res. Def. Council,

Ee 24

Clinton v. City of New York,

oc ccccnevnscecscasscssssssesossecser 7,23

Coleman v. Thompson,

EEA a 7

Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift

Supervision,

139 F.3d 203 (D.C. Cir. 1998)..................4. passim

Edmond v. United States,

ss ca nsnsinianeneeennninenns 8

EEOC v. Arabian Am. Oil Co.,

oe 25

Field v. Clark,

a 23

Freytag v. Comm of Internal Revenue,

os icsrncentnnsntentiibens 3, 4, 8, 23

Garcia v. San Antonio Metro. Transit Auth.,

I nincscnsessonensesasnseunenenen 3, 6, 7,8

Gregory v. Ashcroft,

Be I ITD, ccccccscoccconcvscoscsccocenecossens passim

iV

McCulloch v. Maryland,

TTL EE 7

Mistretta v. United States,

EA 23, 24

Myers v. United States,

a senneentines passim

New York v. United States,

ee 7

NLRB v. Noel Canning,

i nsnenneinnns 17

Pac. Gas & Elec. Co. v. State Energy Res.

Conservation & Dev. Comm'n,

I ____._.._censeusionscoononnens 11

Pennhurst State Sch. & Hosp. v. Halderman,

a cansidionnsopovocssen 25

Rice v. Sarita Fe Elevator Corp.,

SE 25

Soc. Sec. Admin. v. FLRA,

SOT PE GE GAG. Cle. BOGD) ....cccccccccccccccccccccceee 24

SW General, Inc. v. NLRB,

Fee EE Ce Gi. BIE) occccccccccccccssccccccoccccese 24

Texas v. White,

i cuesouoesetional 6

U.S. Term Limits, Inc. v. Thornton,

Is csesesonnenenocatenl 5, 6

United States v. Bass,

i cseuininnionliie 26

United States v. Mead Corp.,

en lotertinircesicecrerensssssesconnncoemnints 24

Constitutional Provisions

FS nee een PoE 7

I ics diconsinscsnsieiceisietsiessenpsaiensliaanes 17

SR III: ET. di trcninsdscinesceemeeiennenmencinibendeetaaiea 8

Ras NE RL. UII Sintississ ianiniesiiecetinsiciecteaenisnciaieneinnionl 5

Statutes

fT RENE 19

Oo ionitiniceisscnssininiecnnstsnianndiiemientenbaeibiianall i, 20

Be icicssitissonssensenicericiniesnennispeiiaimmaniumasitiaiia 20, 22

Act of Feb. 13, 1795, ch. 21, 1 Stat. 415 «0.0.0.0... 18

Act of Feb. 20, 1863, ch. 45, 12 Stat. 656 ................. 19

Presidential Transition Act of 1963 (1988

Amendments), Pub. L. No. 100-398, 102 Stat.

Vacancy Act of Feb. 6, 1891, ch. 113, 26 Stat. 733...22

Vacancy Act of July 23, 1868, ch. 227, 15 Stat.

iid diodisssenvusinneiimemistictenteunmiegiiicddaaasiaaiiaaieame 22

Regulations

80 Fed. Reg. 64,662 (Oct. 23, 2015) ...............ccccceeeeee 11

Power Sector Carbon Pollution Standards.,

Memorandum for the Administrator of the

Environmental Protection Agency (June 25,

2013), 78 Fed. Reg. 39,535 (July 1, 2013).......... 11

Other Authorities

2 Debates in the Several State Conventions on

the Adoption of the Federal Constitution

438—39 (J. Elliot 2d. ed. 1836) ................cccccccceeeees 6

vi

Herbert Wechsler, The Political Safeguards of

Federalism: The Role of the States in the

Composition and Selection of the Nationa!

Government,

54 Colum. L. Rev. 543 (1954) .0...........ccccceceeeeceeeees 8

Ea 19, 20, 22, 27

The Federalist No. 39 (James Madison) (C.

EEE ES 6

The Federalist No. 43 (B. Wright ed. 1961)............... 7

The Federalist No. 46 (James Madison (C.

a esssssnsunnnvecs 7

The Federalist No. 62 (James Madison) (C.

i cseuisouvnsscoocee *,

The Federalist No. 70 (Alexander Hamilton) (C.

SER A &

The Federalist No. 76 (Alexander Hamilton) (C.

ER A LE 9

INTRODUCTION AND

INTEREST OF AMICI CURIAE

This case is significant to amici curiae—the

States of West Virginia, Alabama, Arizona, Georgia,

Kansas, Michigan, Montana, Nevada, Ohio,

Oklahoma, South Carolina, Texas, Utah, and

Wisconsin—because its outcome is critical to

protecting the States against federal encroachment

by preserving the Senate’s constitutionally mandated

advice and consent power.

In our constitutional system, the separation of

powers protects both state sovereignty and

individual liberty. The Constitution preserves the

States’ “residuary sovereignty,” The Federalist No.

62, at 376 (James Madison) (C. Rossiter ed. 1961)

(The Federalist), by granting the States equal

representation in the Senate. The power to provide

advice and consent on executive appointments is one

important tool the Senate uses to check executive

power and, accordingly, protect the States’ sovereign

interests and individual freedoms.

At issue here is the President's attempt to

circumvent the Senate’s role, and by extension the

States’ role, in the appointments process. The

question presented is the extent to which the Federal

Vacancies Reform Act (“FVRA”) limits’ the

President's ability to install his nominee on a

temporary basis as an “acting officer” in the same

position before the Senate has an opportunity to

advise and consent. The NLRB argues that the

statutory limitation applies only to a small subset of

people who could permissibly serve as acting officer

2

under the statute. As persuasively explained by SW

General, such reading is contrary to the clear text of

the FVRA, which Congress enacted to secure the

Senate's ability to advise and consent on presidential

nominees.

As set forth below, canons of constitutional

avoidance and federalism provide further reason for

this Court to reject the NLRB’s expansive view that

the FVRA authorizes the President to install as

acting officer any nominee who is currently serving

in a GS-15 salaried position or higher within the

agency or another position requiring Presidential

appointment and Senate confirmation (“PAS

positions”). This reading would provide the President

with more latitude to install a broader range of

potential nominees in an acting capacity, over a

longer period of time, than any historical antecedent

to the FVRA. If the NLRB prevailed, the President

could install nominees in a host of positions with

broad policymaking authority before the Senate had

an opportunity to advise and consent. This Court

should reject this reading, which raises significant

concerns about whether Congress has improperly

delegated oor abdicated its constitutional

responsibilities.

The NLRB’s reading would also have significant

adverse impact on the States, as unchecked federal

agencies can and frequently do upset the

constitutional balance of federal and state powers

through regulatory overreach. The Senate’s advice

and consent power provides an important check on

these federal encroachments. Allowing the President

to circumvent advice and consent by routinely

3

installing his preferred nominee in office in an acting

capacity would eviscerate an important

constitutional check on executive power, and by

extension, impair the federal-state balance. Absent a

clear statement from Congress, this Court should not

interpret the FVRA in a way that would provide the

President with such untrammeled power.

SUMMARY OF ARGUMENT

I. When left unchecked, federal agencies can

upset the balance of federal and state powers,

especially when regulating in areas of traditional

state responsibility. They do so primarily by

attempting to expand federal authority at the

expense of state laws. This Court has long recognized

that the structural protections of the Constitution,

including the advice and consent power, are

important means to protect the States, and by

extension the people, from encroachment from

federal regulatory overreach. See Freytag v. Comm'r

of Internal Revenue, 501 U.S. 868, 882-84

(1991).Garcia v. San Antonio Metro. Transit Auth.,

469 U.S. 528, 550-51 (1985); Myers v. United States,

272 U.S. 52, 119-20 (1926).

Il. The role of the advice and consent power in

protecting the States is not merely academic. Rather,

the Senate has repeatedly used this power to resist

executive appointments that would, in the Senators’

views, upset the federal-state balance. As Senate

hearings on three recent nominations demonstrate,

the States’ representatives in Congress are keenly

aware of, and exercise, their constitutional obligation

4

to protect the federal-state balance and preserve

individual liberties.

III. SW General has persuasively shown in its

brief that the FVRA plainly prohibits the President

from selecting the same person as both acting officer

and permanent nominee unless that person is an

experienced first assistant. To the extent that the

Court deems the text susceptible of multiple

interpretations, however, principles of constitutional

avoidance and federalism reinforce and compel SW

General's interpretation.

The NLRB’s reading, if adopted, would allow the

President to install a vast number of individuals to

high-ranking federal offices without first obtaining

the Senate’s advice and consent. Congress may not

abdicate its advice and consent power in this

manner, see Freytag, 501 U.S. at 880, and this Court

should reject an interpretation that would raise such

serious constitutional concerns, Bond v. United

States, 134 S. Ct. 2077, 2087 (2014).

And because the Senate’s advice and consent

power ultimately protects the States, Congress must

provide a clear statement if it intends to “override[]

the usual constitutional balance of federal and state

powers.” Bond, 134 S. Ct. at 2089; see also Gregory v.

Ashcroft, 501 U.S. 452, 460-61 (1991). Congress did

not provide any such clear statement here. To the

contrary, it is plain from the text of the FVRA, and

from the historical circumstances that led to its

adoption, that Congress intended to strengthen and

preserve its historic advice and consent power, not

diminish it.

In short, traditional canons of construction

confirm what the plain text already makes clear—

that the FVRA cannot be read to provide the

President with broad authority to anoint the same

person as both acting officer and permanent

nominee.

ARGUMENT

I. Separation Of Powers, Including The Advice

And Consent Power, Protects Both The States

And Individual Liberties.

The Constitution protects the sovereignty of the

States through the separation of powers and, in

particular, through the Senate as the representative

of the States in Congress. The Senate’s advice and

consent power, as elucidated in the FVRA, is a

critical tool that the Senate uses to check executive

power and protect state interests.

The federal government’s powers are not derived

from “the consent of the undifferentiated people of

the Nation as a whole,” but rather from “the consent

of the people of each individual State.” U.S. Term

Limits, Inc. v. Thornton, 614 U.S. 779, 846 (1995)

(Thomas, J., dissenting). The Constitution became

effective only upon ratification by conventions of nine

States and went into effect only between the States

that ratified it. U.S. Const. art. VII. As James

Madison explained, the consent to the Constitution

was “given by the people, not as individuals

composing one entire nation, but composing the

distinct and independent States to which they

6

respectively belong.” U.S. Term Limits, 514 U.S. at

846 (Thomas, J., dissenting) (quoting The Federalist

No. 39, p. 243 (C. Rossiter ed. 1961)).

The enumeration of the federal government's

limited powers “leaves to the several States a

residuary and inviolable sovereignty over all other

objects.” Ibid. “Any interference with [the States’

legislative or judicial power] except as thus

permitted [by the Constitution], is an invasion of the

authority of the State and, to that extent, a denial of

its independence.” Garcia v. San Antonio Metro.

Transit Auth., 469 U.S. 528, 549-50 (1985)

(quotation omitted).

The States’ “residuary and inviolable sovereignty”

is protected in part by the Constitution’s separation

of powers. “[T]he preservation of the States, and the

maintenance of their governments, are as much

within the design and care of the Constitution as the

preservation of the . .. National government.”

Gregory v. Ashcroft, 501 U.S. 452, 457 (1991)

(quoting Texas v. White, 7 Wall. 700, 725 (1869)).

Indeed, the separation of powers is “the principal

means chosen by the Framers to ensure the role of

the States in the federal system.” Garcia, 469 U.S. at

550. As “James Wilson observed[,] ... ‘it was a

favorite object in the Convention’ to provide for the

security of the States against federal encroachment

and that the structure of the Federal Government

itself served that end.” Jd. at 551 (quoting 2 Debates

in the Several State Conventions on the Adoption of

the Federal Constitution 438-39 (J. Elliot 2d. ed.

1836)). The federal government was designed to

“partake sufficiently of the spirit [of the States], to be

7

disinclined to invade the rights of the individual

States, or the prerogatives of their governments.”

The Federalist No. 46, p. 293.

The Constitution’s recognition of state

sovereignty is not merely an end in itself. Rather,

“(t]he structural principles secured by the separation

of powers protect the individual as well.” Bond v.

United States, 564 U.S. 211, 222 (2011). By

protecting the interests of the States, the separation

of powers ultimately secures “the liberties that

derive” to individual citizens “from the diffusion of

sovereign power.” New York v. United States, 505

U.S. 144, 181 (1992) (quoting Coleman v. Thompson,

501 U.S. 722, 759 (1991) (Blackmun, J., dissenting));

see also Clinton v. City of New York, 524 U.S. 417,

452 (1998) (Kennedy, J., concurring) (“Separation of

powers operates on a vertical axis as well, between

each branch and the citizens in whose interest

powers must be exercised.”).

The Senate, in particular, was designed to protect

state interests. The States are equally represented in

the Senate regardless of population, U.S. Const. art.

I, § 3, a feature James Madison viewed as “at once a

constitutional recognition of the portion of

sovereignty remaining in the individual States and

an instrument for preserving that residuary

sovereignty.” The Federalist No. 62, p. 376. In other

words, “the residuary sovereignty of the States [is]

implied and secured by that principle of

representation in one branch of the [federal]

legislature’ (emphasis added). The Federalist No. 43,

p. 315 (B. Wright ed. 1961). See also McCulloch v.

Maryland, 4 Wheat. 316, 435 (1819).” Garcia, 469

8

U.S. at 551 (emphasis in Garcia). Also, a State may

not be deprived of its equal representation in the

Senate without its consent even through adoption of

a constitutional amendment. U.S. Const. art. V

Overall, the Senate is to “function as the forum of the

states” and “is intrinsically calculated to prevent

intrusion from the [federal government] on subjects

that dominant state interests wish to preserve for

state control.” Herbert Wechsler, The Political

Safeguards of Federalism: The Role of the States in

the Composition and Selection of the National

Government, 54 Colum. L. Rev. 543, 546, 548 (1954).

Senate supervision of executive appointments

furthers the protection of state interests from federal

intrusion. The advice and consent power in Article II

is a “significant structural safeguard{] of the

constitutional scheme.” Edmond v. United States,

520 U.S. 651, 659 (1997); see also The Federalist No.

70, p. 421 (Hamilton) (describing the President's

appointment power as “concurrent” with the Senate,

in contrast with the British monarch who was “the

sole author of all appointments.”). Indeed, “[t}he

manipulation of official appointments had long been

one of the American revolutionary generation’s

greatest grievances against executive power, because

the power of appointment to offices was deemed the

most insidious and powerful weapon of eighteenth

century despotism.” Freytag v. Comm’ of Interna!

Revenue, 501 U.S. 868, 883 (1991) (internal

quotation and citation omitted). The Founders

therefore hoped that “[t]he equal representation of

the states in the Senate and the voice of that branch

in the appointment to offices will secure the rights of

the lesser as well as of the greater states.” Myers v.

9

United States, 272 U.S. 52, 120 (1926) (internal

quotation omitted); see also The Federalist No. 76, at

456 (Hamilton) (noting that advice and consent

power would serve as an “excellent check upon a

spirit of favoritism” and “prevent[] the appointment

of unfit characters from State prejudice,” among

other things).

ll. The Senate Frequently Exercises Its Advice

And Consent Power To Protect The States.

The danger to state interests from unchecked

executive appointments is not merely theoretical. To

the contrary, appointees to federal agencies wield

enormous influence and their actions can affect the

balance of state and federal authority through

overreaching regulations. Accordingly, when the

President puts forward a nomination, the Senate

frequently exercises its advice and consent power to

protect the States.

For example, Senators often question nominees

about their views of certain policies that significantly

interfere with state authority and interests. There

are numerous examples of this, but the amici States

highlight three recent nominations that exemplify

this practice. In these cases, the Senate either

rejected or declined to take action on one of the

President's nominees.

A. In January 2014, the President nominated

Janet McCabe to serve as Assistant Administrator

for the Office of Air and Radiation at the

Environmental Protection Agency (“EPA”). After

10

serving as the Principal Assistant Administrator,'

Ms. McCabe became Acting Assistant Administrator

one year earlier. Ms. McCabe was nominated to fill

the position permanently in January 2014? and

again in June 2015.3

In the Senate Committee on the Environment

and Public Works, which considered Ms. McCabe's

nomination, senators questioned her about the effect

that EPA’s rules regulating CO, emissions would

have on the States.‘ In brief, after Congress declined

to pass legislation authorizing a program requiring

reductions in CO», emissions, President Obama

| Press Release, The White House, President Obama Announces

More Key Administration Posts (Dec. 19, 2013), available at

https://www. whitehouse. gov/the-press-

office/201 3/12/19/president-obama-announces-more-key-

2 PN1293—Janet Garvin McCabe—Environmenta! Protection

Agency, Congress.gov (2014),

https://www.congress.gov/nominatiory1 1 3th-

congrese/12937?q=%7B%22search%22%3A%5B%22jan

et+mccabe%22%5D%7D&resultIndex=2. (last visited Sept. 23,

2016).

3 PN697—Janet Garvin McCabe—Environmenta! Protection

Agency, Congress.gov (2015),

https//www.congress.gov/nomination/1 14th-

congresa/697?q=%7B%22search%22%3A %5B%22)janet+mecabe

%22%5D%7Dé&resultIndex=1 (last visited Sept. 23, 2016).

4 Hearing on the Nominations of Janet G. McCabe to be

Assistant Administrator for Air and Radiation of the U.S.

Environmental Protection Agency (EPA), Ann E. Dunkin to be

Assistant Administrator for Environmental Information of the

EPA, and Manuel H. Ehrlich, Jr., to be a Member of the

Chemical Safety and Hazard Investigation Board: Hearing

before the Subcomm. on Env't and Pub. Works, 113 Cong.

(2014) (hereinafter McCabe Hearing).

1]

issued the “Climate Action Plan” and ordered the

EPA to mandate reductions in CO, emissions from

power plants.6 EPA then adopted a rule under

section 111(d) of the Clean Air Act (“CAA”) for CO»

emissions from existing fossil fuel-fired electric

generating units. 80 Fed. Reg. 64,662 (Oct. 23, 2015)

(“Power Plan”). The Power Plan requires States to

fundamentally change the mix of electricity

generation in their States, and thus encroaches on

the States’ “traditional authority over the need for

additional generating capacity, the type of

generating facilities to be licensed, land use,

ratemaking, and the like,” Pac. Gas & Elec. Co. v.

State Energy Res. Conservation & Dev. Comm'n, 461

U.S. 190, 212 (1983). Ms. McCabe played a central

role in developing the Power Pian while serving as

Acting Assistant Administrator.

Thus, in committee, Senator Jim Inhofe

questioned Ms. McCabe on the EPA’s commitment to

allowing the States true flexibility in achieving the

COs, emissions standards under Section 111(d) of the

CAA. McCabe Hearing, at 50. He also noted a Senate

committee report finding that a majority of States

have expressed concerns about the “EPA’s failure to

adhere to the Clean Air Act’s cooperative federalism

design.” Jd. at 65 (internal quotation omitted).

Senator Jeff Sessions similarly noted a white paper

5 Executive Office of the President, The President's Climate

Action Plan (June 2013), available at

https,//www. whitehouse. gov/sitea/default/fileg/image/president2

7sclimateactionplan.pdf.

8 Power Sector Carbon Pollution Standards: Memorandum for

the Administrator of the Environmental Protection Agency

(June 25, 2013), 78 Fed. Reg. 39,535, 39,635-36 (July 1, 2013).

12

authored by a number of state attorneys general

explaining the States’ role in determining emissions

standards under Section 111(d). Id. at 55.

Similarly, Senator John Barrasso explained the

detrimental effect the rule would have in his home

State of Wyoming: “People in Wyoming think this

agency is behaving in an extreme fashion. Many of

the policies coming out of EPA’s Air and Radiation

Office are the cause of the beliefs I am hearing from

the people around the State of Wyoming.” McCabe

Hearing, at 4. Specifically, the Senator noted that

the closure of power plants would have severe

economic consequences on Wyoming. /d. at 5.

Senator David Vitter similarly questioned

whether EPA and Ms. McCabe were “committed to

honoring [the] cooperative federalism structure” of

the CAA and allowing States to take “the lead in

setting case-by-case emission standards.” McCabe

Hearing, at 27. The Senator further urged Ms.

McCabe, if confirmed, to streamline the “process

through which states are afforded an opportunity to

exempt air quality standard exceedances caused by

naturally occurring events outside of their control.”

Id. at 42.

After facing opposition from several senators on

federalism grounds, Ms. McCabe’s nomination failed

to leave committee and has not received a full vote

by the Senate.’

’PN697—Janet Garvin McCabe—Environmental Protection

Agency, Congress.gov (2015),

https,//www.congress.gov/nominatiory1 14th-

congresa/697?q=%7 B%22search%22%3A %5B%22j ane

13

B. A second example involves the President's

nomination of Rhea Sun Suh to be Assistant

Secretary of the Interior for the National Park

Service and the U.S. Fish and Wildlife Service. Prior

to her nomination, Ms. Suh served as the Assistant

Secretary of the Interior for Policy, Management,

and Budget. The two Senate committees with

jurisdiction, the Committee on Environment and

Public Works and the Committee on Energy and

Natural Resources, held hearings in which senators

expressed concerns about the “balance of power

between the States and the Federal Government,”

Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).

Several senators questioned Ms. Suh about the

agency's commitment to consulting with States and

communities before taking action affecting local laws

and policies. Senator Vitter, for example, questioned

Ms. Suh about the Interior Department’s “practice of

negotiating closed door settlement agreements .. .

that exclude from the discussion the folks directly

impacted.” Suh EPW Hearing, at 7. He noted in

particular the Fish and Wildlife Service's failure to

t+mccabe%22%5D%7D&resultIndex=1 (last visited Sept. 23,

2016).

8 Hearing on the Nominations of Rhea Sun Suh to be Assistant

Secretary for Fish and Wildlife and Parks, U.S. Department of

the Interior; Victoria Baecher Wasamer to be Chief Financia!

Officer, U.S. Environmental Protection Agency (EPA); Roy K.J.

Williams to be Assistant Secretary of Commerce for Economic

Development, U.S. Department of Commerce; and Thomas A.

Burke to be Assistant Administrator for Research and

Development, EPA: Hearing Before the S. Comm. on Env’t and

Pub. Works, 113 Cong. 32 (2013) (hereinafter Suh EPW

Hearing).

14

consult with state and local governments on a

settlement agreement requiring the Service to make

listing determinations for more than 250 species. /d.

at 46, 49. He explained that the agreement “is of

substantial concern to many states” because it would

interfere with the States’ on-going efforts to protect

wildlife and avoid the need (for listing

determinations. Jd. at 49. Senator John Boozman

likewise noted “the failure of the Department to

engage with communities and citizens before taking

action.” Jd. at 22, 79. As Senator Vitter explained,

“[t]hat sort of overreach is ... exactly why [the

Senate’s}] role with regard to executive nominations

is so important.” /d. at 8.

A number of senators also questioned Ms. Suh

about her views on the States’ role as sovereign

regulators and whether she would support federal

policies that preempt or otherwise displace state

authority. Senator Tim Scott asked about Ms. Suh’s

views on state regulation of hydraulic fracturing and

whether the federal government should have the

authority to regulate it on state and private lands.

Suh Energy Hearing, at 52-53. Senator Lisa

Murkowski asked under what conditions Ms. Suh

would find it appropriate for the federal government

to interfere with the States’ right to manage wildlife

by reversing a state wildlife decision. Jd. at 49.

Similarly, Senator Barraso asked Ms. Suh how she

would “ensure that federal authority does not

adversely impact” state efforts to protect the sage

grouse. Jd. at 59. Senator Barrasso asked whether

Ms. Suh would “block natural gas production in

places like Wyoming, Alaska, New Mexico, West

Virginia, Louisiana, and others.” Suh EPW Hearing,

15

at 23. The Senator further asked whether Ms. Suh

would “use [her] office to federalize a significant

amount of Wyoming's private land?” Id. at 73.

Ms. Suh’s nomination was ultimately voted out of

committee but failed to receive a full vote on the

floor. President Obama ultimately withdrew the

nomination.?

C. A third example involves a nominee to the

NLRB, the petitioner in this case. During Craig

Becker’s nomination to be a member of the Boara in

2010, senators raised concerns that he would

implement policies displacing state labor laws.

Senator Richard Burr, for example, asked Mr.

Becker whether he would seek to interfere with right

to work laws in North Carolina and other States.!°

In response, Mr. Becker acknowledged that the

National Labor Relations Act allows States to enact

laws that prohibit employers from conditioning

employment on union membership and represented

that he would not interfere with any such law if

confirmed. Becker Hearing, at 27. Becker ultimately

was not confirmed by he 111th Congress!! but was

9 PN1068—Rhea Sun Suh—Department of the Interior,

Congress.gov (2014),

https//www.congress.gov/nominatiory/1 1 3th-

congrese/10687q=%7B%22search%22%3A %5 B%22rheatsuh%

22%5D%7D&resu!tindex=3 (last visited Sept. 23, 2016).

10 Nomination of Craig Harold Becker: Hearing of the S. Comm.

on Health, Educ. Labor and Pensions, 111 Cong. 27 (2010)

(hereinafter Becker Hearing).

11 PN 1647—Craig Becker—National Labor Relations Board,

Congress.gov (2010)

https//www.congress.gov/nominatior/1 1 1 th-

16

later installed by the President through a recess

appointment.!2 Ten months later, several senators

again expressed their opposition to Mr. Becker's

appointment, explaining that during his tenure, the

NLRB threatened four States with lawsuits over

provisions that protected the secret ballot in union

elections. !4

These three examples, and others like them,

demonstrate that Senators take their role as the

States’ representatives in Congress seriously, and

that they often exercise their advice and consent

power to reject or decline to take action on nominees

who they believe could upset the federal-state

balance.

Ill. The FVRA Should Be Interpreted To Preclude

NLRB’s Reading In Light Of Significant

Separation Of Powers and Federalism

Concerns.

The importance of separation of powers, and the

advice and consent role, in protecting the States from

executive overreach highlights the need for this

congresa/16477?q=%7B%22search%22%3A %5B%22craigt+becker

%22%5D%7D&resultindex=2 (last visited Sept. 23, 2016).

'2Press Release, The White House, President Obama

Announces Recess Appointments to Key Administration

Positions (Mar. 27, 2010), available at

https://www. whitehouse.gov/the-press-office/president-obama-

announces-recess-appointments-key-administration-positions.

\3 Letter from Senator Michael Enzi et al. to President Barack

Obama (Feb. 1, 2011), available at

http//indianachamberblogs.com/wp-

content/uploada/Becker%20Nomination%20201 | .pdf.

17

Court’s vigilant enforcement of the FVRA’s limits on

the President's authority to install acting officers in

case of vacancies while the Senate considers a

permanent nomination.

SW General has persuasively explained how the

text of the FVRA unambiguously forecloses the

President from making the appointment at issue

here. But even if there were uncertainty on that

point, canons of constitutional avoidance and

federalism weigh decisively in favor of SW General's

reading of the statute. The NLRB’s contrary reading

of the FVRA would provide the President with

unprecedented latitude to install his preferred

nominee as acting officer in derogation of the

Senate’s advice and consent power and historic role

as protector of the States’ interests in Congress. The

Court should decline the invitation to alter the

separation of powers and federal-state balance in

this manner.

A. The NLRB’s Reading of the FVRA

Would Impermissibly Abdicate The

Senate’s Historic Advice and Consent

Power to the President.

The Constitution provides the default rule that

presidential appointments of “Officers of the United

States,” among others, must be submitted to the

Senate for advice and consent. U.S. Const. art. II, §

2. The Constitution further provides a_ limited

exception for the President to make recess

appointments for “Vacancies that may happen

during the Recess of the Senate.” Jbid.; NLRB v. Noel

Canning, 134 S. Ct. 2550, 2556 (2014). While the

18

Senate remains in session, however, the Constitution

does not provide an explicit mechanism for the

federal government to staff critical positions between

the time when a position becomes vacant and when

the Senate confirms a permanent nominee. E.g.,

Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift

Supervision, 139 F.3d 203, 209-11 (D.C. Cir. 1998)

(providing history of Congressional legislation on

acting officers).

Therefore, since 1792, Congress has enacted

carefully calibrated statutes intended as temporary

stopgap measures to provide it with adequate time to

exercise its constitutional obligation to advise and

consent. The statutes authorize the President to

name acting officers to fill key positions temporarily

after a vacancy occurs but before a nominee is

confirmed. Doolin, 139 F.3d at 205. These statutes

historically have carefully restricted either the time

during which an acting officer may serve or the

universe of people who may serve as an acting officer

or both. Id. at 210.

From the Founding period to the enactment of the

FVRA, the statutory period during which an acting

officer could serve was relatively short—varying

from ten days to six months.!4 Starting in 1863, the

4 The six-month time limit was established in 1792 and

remained in effect unti] 1868. Doolin, 139 F.3d at 210; Act of

Feb. 13, 1795, ch. 21, 1 Stat. 415. The Second Congress adopted

this time limit against the backdrop of exceptionally speedy

confirmation proceedings—Thomas Jefferson and Alexander

Hamilton, for example, were both confirmed to George

Washington's cabinet within a day of their nominations. Doolin,

139 F.3d at 209. Congress reduced this time limit to 10 days in

=

19

law limited the individuals who could serve as acting

officials to already-appointed executive officers. Act

of Feb. 20, 1863, ch. 45, 12 Stat. 656. In 1868, the

Vacancies Act further limited the President’s choice

of acting officers to those who served as first or sole

assistant to that officer or to someone who had

already been previously appointed as a constitutional

officer to another post and confirmed by the Senate.

The version of the Act in effect immediately prior to

the FVRA placed a 120-day limit on the service of

acting officers in most cases, and retained the limits

on the universe of people that the President could

appoint to such interim positions. Doolin, 139 F.3d at

206; 5 U.S.C. §§ 3345, 3348 (1996). Congress also

clarified that the Vacancies Act applied to all

executive agencies other than the General

Accounting Office. The Vacancy Act (1988

Amendments), Pub. L. No. 100-398, § 7(a), 102 Stat.

985, 988.

As federal agencies grew in size and number,

however, American presidents attempted to

circumvent the Senate’s advice and consent function

by bypassing the limitations in the Vacancies Act,

claiming for example that particular agencies or

positions were exempt from the law’s reach. See S.

Rep. No. 105-250, at 3.

Congress therefore enacted the FVRA to reclaim

its constitutional prerogative to advise and consent

1868, then increased it to 30 days in 1891. Jd. at 210. That time

limit was expanded again to 120 days in 1988. Id. at 210;

Presidential Transition Act of 1963,, Pub. L. No. 100—398,§7(b),

102 Stat. 988.

20

on presidential nominees. Jd. at 4—5. The Senate

report accompanying the bill explained that the

scope of the FVRA “must be government-wide unless

Congress chooses clearly and specifically to exempt

specifically identified officers from its reach when

countervailing considerations apply.” S. Rep. No.

105-250, at 5 (emphasis added). Senator Robert

Byrd, a sponsor of the legislation, likewise indicated

in a committee hearing that he intended to fashion

the FVRA to make it “so tight, so air-tight, that no

department can find a crack or crevice anywhere

through which to creep.” Id. at 9 (internal citation

omitted). Congress viewed as “imperative” the

importance of preserving its advice and consent role

over executive appointments because “the issue is

not simply the preroyative of the Senate.” Id. at 8.

Rather, “[ljike other structural constitutional

provisions, the Appointments Clause was designed to

protect the liberty of the people.” Jd.

In furtherance of these goals, Congress in the

FVRA set limitations applying to all federal officers

who were subject to the requirements of presidential

appointment and Senate confirmation. 5 U.S.C. §

3345. The FVRA, however, provided the President

with additional flexibility in naming acting officers

in other respects. For example, it increased the

length of time in which an acting officer could serve

from 120 to 210 days. 5 U.S.C. § 3346. It also

extended the universe of people who could serve as

acting officer to any officer or employee of the agency

who was paid at a GS-15 salary or above and had

served for more than 90 days. 5 U.S.C. § 3345. But,

as SW General explains in detail in its brief, the

FVRA also prohibited the President from naming as

2)

an acting officer the same person that he nominated

for the permanent position, unless that person was

an experienced first assistant (i.e., served as first

assistant in the same position for more than 90 days)

or a Senate-confirmed first assistant. [bid.

The NLRB, by contrast, incorrectly reads the

FVRA to reach significantly beyond providing

stopgap measures to fill vacancies. NLRB reads the

statute as exempting potentially thousands of GS-15

employees and officials holding PAS positions from

the statute's prohibition on the same person serving

as both acting officer and nominee. SW General Br.

36—46. If adopted, the NLRB’s position would provide

the President with authority to install preferred

candidates into offices prior to Senate review to an

extent beyond that previously permitted under the

Vacancies Act. This Court should reject this

invitation, because the plain text of the FVRA

prohibits it. But the same result also obtains under

the traditional canon of constitutional avoidance.

Under the avoidance doctrine, where a statute is

susceptible of two plausible interpretations, this

Court should adopt the reading that avoids serious

constitutional questions. Bond, 134 S. Ct. at 2087.

The NLRB’s reading of the FVRA raises serious

concerns about whether Congress had impermissibly

abdicated its duty to advise and consent on

presidential appointments that SW General's

reading does not.

As explained above, the Advice and Consent

Clause protects against the President’s appointment

of unqualified persons who might be chosen merely

22

by virtue of their familiarity with the President, local

attachments, or partiality. See supra at pp. 5~9.

Under SW General's interpretation of the statute,

only experienced first assistants could serve as both

the President’s nominee and as a temporary acting

officer. For at least two reasons, this arrangement

should not ordinarily raise constitutional concerns.

First, experienced first assistants represent a small,

identifiable universe of employees that Congress has,

from at least 1863, repeatedly concluded possess the

necessary qualifications to serve as acting officers.

See Doolin, 139 F.3d at 210; Vacancy Act of July 23,

1868, ch. 227, 15 Stat. 168; Vacancy Act of Feb. 6,

1891, ch. 113, 26 Stat. 733; Presidential Transition

Act of 1963 (1988 Amendments), Pub. L. No. 100-

398, § 7(b), 102 Stat. 988. Second, as the archetypal

civil servants, first assistants do not raise the same

concerns about partiality and inexperience that

motivated the Founders to adopt the Advice and

Consent Clause. S. Rep. No. 105-250, at 12.

The NLRB’s reading of the statute, by contrast,

would open the door to numerous employees in any

position within an agency at or above a particular

salary level from serving as both nominee and acting

officer, advancing the President's policy agenda

before the Senate can act on the nomination.

Moreover, the FVRA contains a provision (preserved

from the prior Vacancies Act) that tolls the 210-day

limit for acting officers when a nomination is

delivered to the Senate. 5 U.S.C. § 3346. Therefore,

unless the Senate acts on a nomination, the

President's choice could continue serving as acting

officer indefinitely.

23

Congress cannot, and did not, provide the

executive with a blank check to make appointments

in this manner. The Constitution prevents Congress

from delegating its enumerated powers to the

President or any other person or body. Freytag, 501

U.S. at 880; Mistretta v. United States, 488 U.S. 361,

371-72 (quoting Field v. Clark, 143 U.S. 649, 692

(1892)). This principle applies to the Appointments

Clause, which “prevents Congress from dispensing

power too freely,” and “limits the universe of eligible

recipients of the power to appoint.” Freytag, 524 U.S.

at 880. “For example, the Clause forbids Congress

from granting the appointment power to

inappropriate members of the Executive Branch,”

and “[njeither Congress nor the Executive can agree

to waive this structural protection.” Ibid.

Here, the NLRB’s reading of the FVRA would

raise serious concerns about whether Congress had

impermissibly delegated or abdicated its power to

advise and consent to the President. If the President

were permitted to install any agency employee as

acting officer before the Senate had an opportunity to

advise and consent, the “undeniable effects” would be

to “enhance the President’s power to reward one

group and punish another, to help one set of

taxpayers and hurt another, [or] to favor one State

and ignore another.” City of New York, 524 U.S. at

451 (Kennedy, J., concurring). This Court should not

interpret the FVRA to undermine the structural

protections of the Constitution in this manner to the

detriment of the States and the people.

It is no answer to note that this Court has at

times permitted Congress to delegate rulemaking

24

authority to federal agencies so long as Congress

articulates an “intelligible principle” to guide agency

discretion. Mistretta, 488 U.S. at 372; Chevron v.

Nat. Res. Def. Council, 467 U.S. 837, 843-44 (1984).

As the D.C. Circuit correctly noted in this case,

Congress did not entrust the NLRB with the

authority to administer the FVRA, and therefore no

deference is owed the NLRB with respect to its

interpretation of the statute. SW General, Inc. v.

NLRB, 796 F.3d 67, 74 n.4 (D.C. Cir. 2015) (citing

Soc. Sec. Admin. v. FLRA, 201 F.3d 465, 471 (D.C.

Cir. 2000)); United States v. Mead Corp., 533 U.S.

218, 226-27 (2001). Moreover, this Court has never

extended the concept of Chevron deference outside

the policymaking sphere tc the realm of executive

appointments. Where, as here, the Constitution

specifically entrusts the Senate with the power to

advise and consent, Congress may not delegate that

power, even if it has set certain broad parameters

within which the President may act.

In short, the serious separation of powers

concerns associated with the NLRB’s reading of the

FVRA provide an additional reason for this Court to

interpret the statute according to its plain meaning

and limit the President’s ability to install nominees

as acting officers prior to Senate confirmation.

25

B. Congress Has Not Clearly Expressed

An Intent To Alter The Federal-State

Balance By Expanding The President’s

Authority To Install Nominees As

Acting Officers.

As explained above, the NLRB’s position if

adopted would also raise serious federalism concerns

given the importance of advice and consent for

protecting state interests. A permissive reading of

the FVRA would allow the President to circumvent

the Senate’s advice and consent role, which serves as

an important protection for state interests, in a host

of novel circumstances. Even if the text of the FVRA

allowed for this reading, which it does not, Congress

must plainly express such an intention to upend the

federal-state balance. It has not done so here.

This Court has explained that “Congress

legislates against the backdrop” of certain

presumptions, EEOC v. Arabian Am. Oil Co., 499

U.S. 244, 248 (1991), including “the relationship

between the Federal Government and the States

under our Constitution.” Bond 134 S. Ct. at 2088. For

example, this Court presumes federal statutes do not

abrogate state sovereign immunity, Atascadero State

Hosp. v. Scanlon, 473 U.S. 234, 243 (1985); impose

obligations on States under section 5 of the

Fourteenth Amendment, Pennhurst State Sch. &

Hosp. v. Halderman, 451 U.S. 1, 16-17 (1981); or

preempt state law, Rice v. Santa Fe Elevator Corp.,

331 U.S. 218, 230 (1947). Similarly, it is “incumbent

upon the federal courts to be certain of Congress’

intent before finding that federal law overrides the

usual constitutional balance of federal and state

26

powers.” Bond, 134 S. Ct. at 2089 (quoting Gregory,

501 U.S. at 460).

For example, this Court in Bond rejected a

reading of the term “chemical weapon” in the federal

Chemical Weapons Convention Implementation Act

that would “reach purely local crimes,” 134 S. Ct. at

2090. The question presented was whether the

statute, which defined “chemical weapon” broadly as

any toxic chemical used for other than peaceful

purposes, id. at 2084, prohibited the local use of a

chemical that caused a minor thumb burn, id. at

2083. Although the text of the Act might have

included the conduct at issue, the Court rejected that

reading as inconsistent with “principles of federalism

inherent in our constitutional structure,” id. at 2088,

because it would “dramatically intrude upon

traditional state criminal jurisdiction.” Ibid. (quoting

United States v. Bass, 404 U.S. 336, 350 (1971)). The

Court declined to read the statute in that manner

because Congress had not clearly indicated its intent

to upset “the relationship between the Federal

Government and the States under our Constitution.”

Ibid. q

This Court applied the same canon of

construction to the selection of state government

officials in Gregory, 501 U.S. at 460. The question

there was whether the Missouri constitution’s

mandatory retirement provision for state judges

violated the federal Age Discrimination in

Employment Act (“ADEA”). Id. at 455-57. The Court

concluded that, although the text of the ADEA was

ambiguous as to whether state judges were exempt

from the ADEA, reading the statute to limit the

27

State’s ability to set qualifications for its officers

upset the federal-state balance and required clear

congressional authorization. Jd. at 470. Allowing

Congress to interfere with Missouri's “constitutional

power to establish the qualifications” of state officers,

id. at 461, this Court reasoned, “would upset the

usual constitutional balance of federal and state

powers,” id. at 460.

This clear statement rule applies with equal force

in this case. The NLRB’s permissive reading of the

FVRA would upset the usual balance of federal and

state powers by diluting the Senate’s historic advice

and consent power. The current constitutional

balance affords States, through their elected

representatives in the Senate, an important role in

advice and consent on executive appointments, see

supra pp. 9-16, just as States traditionally have had

the power to set qualifications for their own officers,

Gregory, 501 U.S. at 461-62, and punish local

criminal activity, Bond, 134 S. Ct. at 2089. This

Court should similarly decline to read the FVRA to

alter the existing balance of power on executive

appointments absent clear congressional

authorization.

Nothing in the FVRA indicates that Congress

intended to limit its advice and consent role. To the

contrary, as shown above, Congress repeatedly

expressed its intent during the enactment process to

preserve the Senate’s advice and consent power. See

S. Rep. No. 105-250 at 5, 12. This Court should not

infer, based upon at most a dubious reading of

statutory text, that Congress intended to abdicate

that power here in a host of novel circumstances.

a

28

In short, federalism principles reinforce the

conclusion that the FVRA does not authorize the

President to direct a panoply of nominees to serve in

an acting capacity pending hearings and a vote in

the Senate. For this reason too, the Court should

reject the NLRB’s attempt to insulate presidential

nominations from the Senate’s advice and consent.

CONCLUSION

The decision below should be affirmed.

Montgomery, AL 36130

* Counsel of Record

29

Respectfully submitted,

PATRICK MORRISEY

Attorney Genera!

ELBERT LIN

Solicitor Genera!

THOMAS M. JOHNSON,

JR.*

Deputy Attorney

General

ERICA N. PETERSON

Assistant Attorney

General

OFFICE OF THE WEST

VIRGINIA ATTORNEY

GENERAL

State Capitol,

Building 1, Room E-26

Charleston, WV 25305

Thomas.M.Johnson.Jr@

wvago.gov

(304) 558-2021

MARK BRNOVICH

Attorney General!

State of Arizona

SAMUEL S. OLENS

Attorney General

State of Georgia

DEREK SCHMIDT

Attorney Genera!

State of Kansas

BILL SCHUETTE

Attorney General

State of Michigan

TIMOTHY C. Fox

Attorney General

State of Montana

ADAM PAU1, LAXALT

Attorney General

State of Nevada

MICHAEL DEWINE

Attorney General

State of Ohio

E. Scott PRUITT

Attorney General

State of Oklahoma

30

ALAN WILSON

Attorney Genera!

State of South

Carolina

KEN PAXTON

Attorney Genera!

State of Texas

SEAN D. REYES

Attorney General

State of Utah

BRAD D. SCHIMEL

Attorney General

State of Wisconsin