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Mooting Noel Canning?

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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4 Responses

  1. mls says:

    Well, it isn’t a question of whether they can confirm all of the decisions of the recess appointees. The only issue would relate to the unfair labor practice finding against Noel Canning. Would they need to at least go through the motions of hearing the appeal from the ALJ again (or would there even need to be a new ALJ decision)? Not sure of the answer, but I would imagine that the administration could make a strong mootness argument if it were willing to re-do the Noel Canning adjudication sufficiently.

    Now here is my question. Didn’t you sign a letter saying that the Senate could only exercise the “nuclear option” on the first day of the new Congress?

  2. Gerard Magliocca says:

    I did. Of course, a Senate rule change like that is not subject to judicial review. I wouldn’t hold my breath that they will actually change the rules. Confirming the nominees, though, is possible.

    I’m not sure what “redoing sufficiently” means. I’ll leave that to the admin law experts.

  3. Brian Clarke says:

    If I recall correctly, after New Process Steel (which held that the NLRB could not act with only 2 members and that all of its decisions with only 2 members were invalid), once the Board had a 3 member quorum, it ratified/adopted/affirmed all the actions deemed invalid by the Court. I would think something similar would occur this time around (unless no one gets confirmed to the Board until a Republican president is in office and there are no “legitimate” recess appointments).

  4. Joe says:

    fingers crossed