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06/29/2013

Peter Shane on Recess Appointments
Michael Ramsey

Two from Peter M. Shane (Ohio State University  - Michael E. Moritz College of Law) on SSRN: 

The Future of Recess Appointments in Light of Noel Canning v NLRB

The D.C. Circuit opinion invalidating President Obama's 2012 recess appointments of three NLRB commissioners reaches issues it did not have to reach, and resolves them through a textual analysis that is both unpersuasive on its own terms and oblivious to the force of institutional custom and history in interpreting the Constitution. If upheld, the opinion could have terrible consequences for public administration and promote a further breakdown in norms of interbranch comity on which the separation of powers depends.

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

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.