Is Noel Canning v. NLRB a classic separation-of-powers conflict between the Senate and the President, or a false controversy created by the House of Representatives, which has no business interfering with appointments? I argue the latter in a short essay forthcoming in the Harvard Law Review's online companion, the Forum.
I have a few more thoughts on the controversy that I hope to share here in the coming weeks as well. Here's one: If you've followed the current recess appointments controversy, you know that challenges to Richard Cordray's appointment are moot since the Senate confirmed him in July and he ratified his prior actions. So the issue is moot now, but there's an unexplored argument that his appointment was always valid because the Senate consented to it.