5 Pages Posted: 1 Aug 2013
Date Written: July 29, 2013
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: 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