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NLRB v New Vista Nursing and Rehabilitation: The Third Circuit Further Fuels the Constitutional Conflict Over Recess Appointments

Bloomberg BNA Daily Report for Executives B1-B5

Ohio State Public Law Working Paper No. 218

7 Pages Posted: 25 Jun 2013  

Peter M. Shane

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: May 24, 2013

Abstract

A new opinion by the Third Circuit that followed the D.C. Circuit in invalidating President Obama’s use of the recess-appointments power may actually strengthen the president’s case. The decision may focus the Supreme Court’s attention on how much legal uncertainty the Court could create by holding intrasession recess appointments invalid. Beyond that, the new decision devastates the D.C. Circuit’s textualist reading of the Recess Appointments Clause. The Third Circuit’s more policy-oriented analysis, if pursued with a more accurate view of the Framers' purposes, actually points toward upholding intrasession recess appointments under current institutional conditions.

Keywords: recess appointments, president, congress, Obama, NLRB, separation of powers, constitutional interpretation

JEL Classification: K1, K23, K31

Suggested Citation

Shane, Peter M., NLRB v New Vista Nursing and Rehabilitation: The Third Circuit Further Fuels the Constitutional Conflict Over Recess Appointments (May 24, 2013). Bloomberg BNA Daily Report for Executives B1-B5; Ohio State Public Law Working Paper No. 218. Available at SSRN: https://ssrn.com/abstract=2284316 or http://dx.doi.org/10.2139/ssrn.2284316

Peter Shane (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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