John Greabe (University of New Hampshire School of Law) has posted Noel Canning and Remedial Obligation Under the Constitution on SSRN. Here is the abstract:
This Essay takes up the question whether the Supreme Court’s ruling in NLRB v. Noel Canning should be seen to automatically invalidate the decisions and acts of the Board during the period when it lacked a quorum because a majority of its members held their posts through unconstitutional recess appointments. Arguing that the question is one that should be considered within the broader and more contextually appropriate law of remedies for wholly concluded constitutional violations, the Essay concludes that the answer is no. Rather, the question of remedy should be decided on a case-by-case basis in a manner that is akin to harmless-error and plain-error review.