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

Posted by Peter M. Shane on July 30, 2013

Bloomberg BNA yesterday published a brief essay of mine — a link to the full text appears below — arguing that, 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 Court 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.

Peter Shane Argument for Judicial Restraint in Recess Appointments Cases

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