Noel Canning and Remedial Obligation Under the Constitution

Abstract

There is a pervasive assumption that the Supreme Court's ruling in NLRB v. Noel Canning has rendered void the decisions of the Board during the period when it lacked a quorum because a majority of its members held their posts through unconstitutional recess appointments. The assumption is unfounded. The question of remedy for the wrong identified in Noel Canning should not be decided in the air; it should be decided contextually, as one involving whether and how to provide relief to parties affected by a wholly concluded constitutional violation, in a manner that is akin to harmless- and plain-error review.

Keywords: Noel Canning, constitutional remedies, structural error, harmless error, plain error