Yesterday the Supreme Court ruled in the case of National Labor Relations Board v. SW General that an “acting” officer cannot simultaneously stand as a nominee to hold that office permanently, regardless of how the acting officer was appointed. The ruling is a double victory, both for the separation of powers between the president and Senate and for textualism.
Though technical, the statutory interpretation issue in this case was not overly complicated. The Federal Vacancies Reform Act (FVRA) lays out three methods by which someone can become an acting officer in three separate clauses, subsections (a)(1), (a)(2), and (a)(3). It also has a “disqualifying clause,” declaring that (with some exceptions not relevant here) “a person may not serve as an acting officer” if he has also been nominated for a permanent position as that same officer.
There would be no dispute that the disqualifying clause applies to all acting officers, except for one wrinkle: the disqualifying clause begins with the preamble “Notwithstanding subsection (a)(1).” Based only on this preamble, the government argued that the disqualifying clause applies only to those who became acting officers under subsection (a)(1). This would mean that anyone who became an acting officer under subsections (a)(2) or (a)(3) (including the man at the center of this case, former NLRB acting general counsel Lafe Solomon) could never be disqualified by the clause.
The decisive moment in the case may have come during oral argument, when Justice Kagan delivered a simple textual analogy to drive home the implausibility of the government’s argument:
I’m at a restaurant and I’m talking to my waiter, and I place three orders. I say, number one: I’ll have the house salad. Number two: I’ll have the steak. Number three: I’ll have the fruit cup. And then I tell the waiter: notwithstanding order number three, I can’t eat anything with strawberries.
As those in the courtroom recognized, this hypothetical maps onto the disputed text of the FVRA: the three orders are the three subsections, and “I can’t eat anything with strawberries” is the disqualifying clause. Then comes the punchline:
So on your theory, the waiter could bring me a house salad with strawberries in it. And that seems to me a quite odd interpretation of what’s a pretty clear instruction: No strawberries.
In the opinion by Chief Justice Roberts (which Kagan joined), fruit salad is sadly nowhere to be found. But in its place is a nearly identical analogy, which shows just how powerful Kagan’s argument was in shaping the Court’s textual analysis:
Suppose a radio station announces: “We play your favorite hits from the ’60s, ’70s, and ’80s. Notwithstanding the fact that we play hits from the ’60s, we do not play music by British bands.”
You would not tune in expecting to hear the 1970s British band “The Clash” any more than the 1960s “Beatles.” The station, after all, has announced that “we do not play music by British bands.” The “notwithstanding” clause just establishes that this applies even to music from the ’60s, when British bands were prominently featured on the charts.
In other words, the Court placed the textual emphasis squarely where it belonged, on the all-encompassing phrase “a person may not serve as an acting officer.”