NLRB v. SW General, Inc. (15-1251)
argument 15-1251NLRB v. SW General, Inc.
Supreme Court of the United States
1h 0m
5 speakers
8 chapters
transcribed 6 days ago
official recording ↗
Transcript
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What is the statutory framework of the Vacancy Reform Act being debated?
We'll hear argument this morning in case fifteen twelve fifty one. National Labour Relations Board versus South West General Incorporated. Mr Acting, Solicitor General.
Thank you, Mr Chief Justice, and may it please the court. The Vacancy Reform Act's limitation on an individual serving as both the nominee and as the acting official for a single office applies only to someone who is currently the first assistant in that office and is acting pursuant to the automatic service rule set forth in subsection thirty three forty five A one. Both the GAO and OLC adopted that interpretation of the Act shortly after its passage. And in the nearly two decades from passage of the Act till the DC circuit decision here, presidents of both parties have made scores of nominations and designations based on that interpretation of the text without recorded objection from even a single Senator or staff member.
General Gershengoid, can I ask um As you read this statute Suppose you just took out these words notwithstanding section uh s subsection A one. What would then the effect of the statute be?
So Your Honor, I think that our textual argument would be much more difficult and that the effect of the statute would be effectively to override A one, A two, and A three. The notwithstanding clause really is the anchor of our textual interpretation. But its strength I think comes not only from its text, but also how it fits so well with both the history, structure, contemporaneous interpretation and practice.
But just focusing on text for a minute, if that's true, if the entire textual argument really does rest on the notwithstanding subsection A one. Mean typically when you have a notwithstanding clause it means You know. Take away Sec subsection A One. На you know, uh close your eyes to subsection A One. Um but it doesn't do anything more than that. So why do you think Uh it should be taken to do something more than that in this case.
Your Honor, we think that because it's a routine application of the expresio unius canon in the context of the notwithstanding clause. And so we think it has power for at least three reasons. First, and we're on uh pages eighty two A and eighty two uh uh eighty three A of the government's brief. The um the the expressio unius implication is very strong here. Because if you read the statute on page eighty two A, A one sets out the first assistant rule, A two sets out the um the PAS rule for a Senate confirmed official, and A three then sets out the act the career official or the agency with sub agency official with substantial service. The very next words in the statute are notwithstanding subsection A one.
So after A one, A two, and A three. Congress said notwithstanding only A one. We think the expresio unius um canon is particularly powerful because Congress could have said if it wanted to do what respondents say, notwithstanding subsection A. But it did not do that. And it's particularly powerful as well because the notwithstanding clause, as your honor suggests, is one that Congress uses all the time. Congress will say, notwithstanding any other provision in the code, notwithstanding any other section of the
Can I give you a hypo? Sure. So the hypo is uh I'm at a restaurant and I um 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 stake. Number three, I'll have the fruit cup. And then I tell the waiter. Notwithstanding Order No. three. I can't eat anything with strawberries. 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.
So, Your Honor, I think this really is fundamentally different for a number of reasons. First of all, we have before us In contrast to your um your waiter hypothetical, we have before us the very history of this clause which suggests an interpretation very much in line with the government's interpretation.
So I I take it, you know, that you you you have some uh arguments, some strong arguments on on history and uh on practice.
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Chapters
8 chapters
1
What is the statutory framework of the Vacancy Reform Act being debated?
0:00–7:41
2
How do the parties interpret the “notwithstanding” clause in the statute?
7:41–15:33
3
What analogy does the Solicitor General use to illustrate the clause’s effect?
15:33–22:54
4
Why do the government’s lawyers cite GAO and OLC interpretations as decisive?
22:54–31:26
5
What legislative history and drafting changes explain the treatment of first assistants?
31:26–37:12
6
How could the statute’s limits create uncertainty for past acting officials?
37:12–44:34
7
What facts about the NLRB General Counsel case illustrate the practical stakes?
44:34–53:22
8
What are the final arguments and the Court’s next steps in this case?
53:22–1:00:20