A constitutional showdown between President Barack Obama and Republican members of Congress over the president’s recess appointments to the National Labor Relations Board (NLRB)appointments without the consent of the Senateis likely en route to the U.S. Supreme Court.
In Noel Canning v. NLRB,1 decided on Jan. 25, 2013, the D.C. Circuit held that the president’s recess appointments were unconstitutional, contradicting a 2004 holding by the Eleventh Circuit.2 Because the legitimacy of the NLRB’s decisions since January 2012 hangs in the balance, a period during which the Board aggressively expanded the rights of employees and unions, the stakes for federal labor law on both sides of the issue could not be higher. This article examines the Noel Canning decision and its impact on the NLRB’s recent expansion of employee rights.
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