First, Babson said, a company didn't have to raise the issue of unconstitutional recess appointments on its original review by the board, because the Noel Canning company didn't raise it until its appeal to the D.C. Circuit. (Noel Canning's lawyer didn't immediately return calls.)
Second, Babson added, is that the NLRB has to go to court to enforce any order, and federal law allows a company to seek review of that order either where it is doing business or in the D.C. Circuit.
"Everybody can go to the D.C. Circuit, and that's what they're going to do," Babson added. "So any lawyer — company or union — that received an adverse ruling and doesn't take it to the D.C. Circuit probably should be doing something else for a living."
Charles Cohen, senior counsel in the labor and employment practice at Morgan, Lewis & Bockius, said the ruling by its terms doesn't affect about 80 percent of what Solomon, the NLRB GC, does. But it does affect his work with and for the board.
"Solomon probably will be strategizing with the board institutionally about what to argue. And I assume they are counseling with the Department of Justice and recognizing that this is a problem which transcends the board," Cohen said.
The only question, Cohen noted, is whether they go back to the D.C. Circuit and seek a rehearing en banc, or go straight to the U.S. Supreme Court with a petition.
Mayer Brown's Pincus said the CFPB's authority could be worked out in a compromise between President Obama and the Senate.
But most of the experts still expect that eventually the entire question of presidential appointment power will end up in the lap of the Supreme Court. That could come as early as April if there's an expedited appeal by the NLRB or be delayed until October or even into 2014.
Pincus summed up the situation going forward: "If this rationale is upheld on appeal, there won't be any more recess appointments. And that means a fundamental change in the functioning of the federal government."
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