The US Supreme Court (SCOTUS) issued the final word this week on President Obama’s appointment of Lafe Solomon as acting NLRB General Counsel back in 2010: the appointment was against the law! A quick summary, Lafe Solomon was named acting NLRB General Counsel by President Obama back in June, 2010 and formally nominated for the position in January, 2011. Over two years his nomination was pending while he served as acting General Counsel, but he didn’t get the votes necessary to win US Senate confirmation. In the Federal Vacancies Reform Act of 1998, Congress prohibited nominees awaiting Senate confirmation from serving in that same post in an acting capacity. Despite that prohibition, President Obama re-nominated Solomon with the same result and he served in an acting capacity as nominee through 2013. Back in 2016, the lower court ruled the appointment illegal, but the NLRB appealed that decision to the Supreme Court. SCOTUS upheld the DC Circuit decision this week and put the issue to bed once & for all – a presidential nominee cannot serve in an acting capacity in the position for which they’ve been nominated and are awaiting US Senate confirmation. The application of the ruling is very narrow however, due to the timeliness (or lack thereof) of other complaints being raised to the courts.