The high court may uphold the lower court by barring nominations while the Senate is still in a so-called pro forma session, while simultaneously striking down its more restrictive holding that appointments can only be made for vacancies that occur when the Senate is adjourned.
Elwood, a partner at Vinson & Elkins in Washington, said he was amazed by the Washington court's opinion because it contained history and elements from the Kennedy brief that "weren't really pushed hard" by the plaintiffs.
If the Justice Department seeks en banc review, the government could argue that it should be allowed the opportunity to challenge some of that analysis, he said.
The ruling is the first substantive decision by a federal appeals court in the recent challenges to the president's naming of three NLRB members Jan. 4, 2012, while the Senate was holding so-called pro-forma sessions. Such sessions sometimes involved a single senator appearing in the chamber every third day.
To prevent Obama from making appointments after Congress started a holiday break in December 2011, House and Senate Republicans refused to formally adjourn as they sought to block the appointment of Cordray, a former Ohio attorney general, as the first head of the Consumer Financial Protection Bureau.
Contested appointment
Obama put Cordray, who was nominated in July 2011, in his post on the same day as the NLRB board members, an appointment also being contested in a lawsuit in Washington federal court. Obama renominated Cordray on Jan. 24.
The court's decision "casts serious doubt" on whether Cordray's recess appointment is constitutional, Senate Minority Leader Mitch McConnell said in a statement.
McConnell and 41 other Republican senators filed court papers challenging the NLRB appointments, and McConnell attended oral arguments in the case.
Noel Francisco of the law firm Jones Day, who represented the unit of Noel Corp., the Yakima, Wash.-based soda bottler, seeking to overturn the appointments, said anyone subject to regulations by the CFPB would be able to challenge them in Washington.
Carney said the ruling "has no bearing on" Cordray's appointment and it will have "no direct effect" on the CFPB, according to Moira Vahey, an agency spokeswoman. The Justice Department said in a statement it believes the recess appointments are "constitutionally sound."
