This Week at the Supreme Court


by Jonathan Keim | November 7th, 2016

The Court is continuing this term’s slower pace of work, with only four hours scheduled for argument this week.

This morning the Court will hold oral argument about the scope of the Federal Vacancies Reform Act in NLRB v. SW General, Inc., which resembles a statutory version of the constitutional question in NLRB v. Noel Canning (2014). The FVRA was passed in 1998 to prevent presidents from circumventing Senate opposition to a particular presidential nominee by hiring the nominee as a high-level assistant and then designating them the “acting” official. In this case, the president designated an acting general counsel under the FVRA but then nominated the same person for the non-acting position, something which arguably made the nominee ineligible to serve as an “acting” official. The interpretive details get somewhat technical, but there are some interesting issues floating around in the case. One is whether Congress acquiesced to a statutory interpretation set out in a 1999 OLC memo that was reversed only two years later.  Another is the extent to which “historical practice” can be helpful to statutory interpretation when the statute itself isn’t even 20 years old.

On Tuesday the Court will hear a case about the standing requirements for cases brought under the Fair Housing Act and a case about original jurisdiction over cases brought by or against Fannie Mae. On Wednesday the Court will consider the constitutionality of differing physical-presence requirements for citizenship that apply to unwed citizen mothers of foreign-born children and those that apply to other citizen parents of foreign-born children.