In NLRB Recess Appointments Case, Roberts Court Can Now Show It Knows How to Exercise Judicial Restraint

5 Pages Posted: 1 Aug 2013  

Peter M. Shane

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

Date Written: July 29, 2013

Abstract

If the Senate confirms a full complement of members for the National Labor Relations Board, the Obama administration should ask the Supreme Court in Noel Canning v. NLRB to remand the case, without decision, to be re-heard by the NLRB. The court should grant the request, showing a judicial restraint for which the Roberts bench is not known — and returning the recess appointments controversy to the elected branches of government, where it belongs. If the SG does not pursue this course, the Court should use the political question doctrine to avoid unnecessary judicial interference with the dynamics of the President's and Senate's shared appointments power.

Keywords: administrative law, constitutional law, article II, NLRB, Noel Canning, recess appointments, president, Congress, separation of powers, judicial restraint, Supreme Court, political question

JEL Classification: K1, K23, K31

Suggested Citation

Shane, Peter M., In NLRB Recess Appointments Case, Roberts Court Can Now Show It Knows How to Exercise Judicial Restraint (July 29, 2013). Ohio State Public Law Working Paper No. 221. Available at SSRN: https://ssrn.com/abstract=2304256 or http://dx.doi.org/10.2139/ssrn.2304256

Peter M. 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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