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Noel Canning v. NLRB - Enforcing Basic Constitutional Limits On Presidential Power

by Noel J. Francisco & James M. Burnham
99 Va. L. Rev. Online 17 (2013)

On January 4, 2012, President Obama purported to make three “recess” appointments to fill preexisting vacancies on the National Labor Relations Board (“NLRB”). The President made these appointments despite the Senate’s convening the day before to begin the Second Session of the 112th Congress, and despite the Senate’s convening again two days later for a session on January 6, 2012. Because the so-called “recess” was actually just a three-day break during the Senate’s session, the appointments were immediately controversial. That controversy prompted numerous legal challenges, including our case, Noel Canning v. NLRB, in which the U.S. Court of Appeals for the D.C. Circuit issued an opinion last January holding that the appointments contravened two of the Constitution’s basic limitations on the recess appointments power and were thus invalid. The executive branch recently announced its intention to seek certiorari from the D.C. Circuit’s decision, and so Noel Canning looks like it is headed for the Supreme Court.

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