National Labor Relations Board v. SW General, Inc. Page 2

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Media for National Labor Relations Board v. SW General, Inc.

Audio Transcription for Oral Argument - November 07, 2016 in National Labor Relations Board v. SW General, Inc.

Ian H. Gershengorn:

We think there is a direct conflict between (a)(2), which says the President may appoint this person as an acting, and (b)(1), which says the President may not appoint -- appoint a person as an acting when that person is also the nominee. That (b)(2) is a very -- is a designation and delegation of power to the President to make a designation, and it is every bit as broad as the -- as the (a)(1) example.

Samuel A. Alito, Jr.:

But it's not quite the same kind of conflict.

To -- to pick up on Justice Kagan's restaurant scenario and modifying it a bit, if she -- if she were to say, or if I were to say to the waiter, "You may bring me the soup of the day, but you may not bring me soup that contains shellfish because I'm allergic to it," there wouldn't be a conflict of the same sort, would there, between those two statements?

Ian H. Gershengorn:

So, Your Honor, I do think that there -- I do think there would be, and I think in particular, even apart from the restaurant hypo itself, the whole purpose of (a)(2) is to give the President the power to make a designation when he believes there's a superior official serving elsewhere in the government.

That grant of power is every much restricted by (b)(1) as (a)(1) absent the introductory clause.

The -- the (b)(1) says the President may do this.

(b)(2) says in some circumstances he may not do this, and that is precisely the kind of conflict that Congress was getting at. But even if you thought the text had some ambiguity here, I really do think that the other aids to statutory construction which this Court's have looked to -- this Court has looked to -- over and over, really do work in our favor and really not at all in Respondent's favor here. The -- principally, if one looks at the contemporaneous interpretation and consistent practice, what one sees is the sponsor of the legislation identified precisely the government's interpretation. Both GAO and OLC adopted that interpretation. President --

Ruth Bader Ginsburg:

You went into detail without any elaboration.

It's just a question, and here's the answer, and there's no reason for the answer from OLC.

As far as GAO is concerned, they didn't say precisely what happens with category two and three.

Ian H. Gershengorn:

So, Your Honor, I think -- so, two points -- a number of points, but two responding directly to both of those. With respect to OLC, our point is not that this Court should defer to it or defer to the reasoning in it.

Our point -- our point is, from the very beginning, from the moment the statute was passed, Congress was aware of the interpretation the Executive Branch was putting on it and raised no objection. And with respect to GAO, the GAO letter I think is quite significant because GAO recall under Section 3349 is the Congressionally-designated watchdog for the Vacancies Act, and when GAO issued its letter, which I -- I respectfully disagree, Your Honor, I think the GAO letter is quite clear. If you look at it, what it says is there are four ways to make an acting appointment, and for number 1, (a)(1), it says "And you can't be the nominee." For the other three, it does not have that, and the whole point of that letter was to give guidance to Congress.

So that letter was circulated not just to the Senate majority and minority committees, but to the Office of Presidential Personnel, to the White House counsel's office, to OPM and OMB.

John G. Roberts, Jr.:

Well, I think you're putting a significant burden on Congress to sort of speak up.

There's sort of an estoppel against Congress. If they don't speak up in every instance where they think some prerogative or interpretation is -- is being misapplied or prerogative taken away from them, then there can -- deemed to have acquiesced in it.

And this is a context in which that might be particularly inappropriate, because maybe the particular appointment contravenes your -- your theory. But a significant number of people in Congress want to see that vacancy filled, you know, under -- even though it contravenes these more general provisions, and that might not be a particular battle they want to fight at that time.

I -- I think it's a very serious burden to impose on the Legislative Branch.

Ian H. Gershengorn:

So, Your Honor, if -- we're not imposing a burden on the Branch, but we are asking you not to turn a blind eye to what really happened in this context. What lead up to the Vacancy Reform Act was -- was decades of Congress raising exactly the kind of objections that one would expect.

There were oversight hearings.

There were GAO letters.

There were congressional research reports.

There were letters back and forth to the Attorney General complaining about the way the Justice Department and the Executive Branch was handling the vacancies, and -- and ignoring the Vacancies Act. Then what we have is an interpretation -- then what we have is the Vacancies Reform Act and an interpretation set out by the author of the very provision we're talking about, Senator Thompson, and opened discussion by GAO, the watchdog of the Vacancies Act, designated by Congress and by OLC, and then silence.

So we're not putting a burden --

Ruth Bader Ginsburg:

But you have on the other side -- was it Senator Thompson, you have Senator Byrd who seemed to be putting on it the construction that Respondents do.

Ian H. Gershengorn:

So, Your Honor, I think that actually Senator Byrd is quite -- is quite vague about that and omits the "notwithstanding" language. But even if you thought that was sort of a draw, I would note that Senator Byrd, who again was not shy and had weighed in on these Vacancies Act issues, never raised an objection when the -- when Presidents across three administrations continued it into --

Anthony M. Kennedy:

I'm sorry.

I think it should be noted that, you know, it's one thing to consult legislative history to understand the -- the whole context in which the -- the Congress was acting, but it's quite another thing to rely on an isolated statement and later contradicted by -- by another Senator, and even for those who at times find legislative history helpful, I think this is where it's at its weakest and most unpersuasive.

Ian H. Gershengorn:

Your Honor, I disagree -- I don't -- I don't disagree with Your Honor. It is merely one, though, of a consistent stream given the OLC and GAO opinion. So I really would like to get back to the Chief Justice's point, if I could.

It is not at all an estoppel by Congress.

It is -- the reason why this Court has put -- should put particular weight on this silence here is because it reflects a contemporaneous and uniform interpretation of Congress' understanding of how its own powers are being -- are or are not being infringed.