By waiting so long to nominate Richard Cordray to be the first director of the Consumer Financial Protection Bureau (CFPB), President Obama has boxed himself in and Cordary will have to be confirmed by the Senate for the new bureau to exercise its full powers.
It appears the president can't use a recess appointment or the Vacancy Act to install Cordray as the acting director of the new bureau that will officially open its doors on Thursday.
Meanwhile, 44 Republican senators are demanding structural reforms that would turn the bureau with a single director into a five-member commission. These senators also are demanding that the CFPB be subject to the congressional appropriations process.
"Until President Obama addresses our concerns by supporting a few reasonable changes, we will not confirm anyone to lead it," said Sen. Richard Shelby, R-Ala.
So far, the Obama administration has opposed such changes. But Cordray's nomination may signal the White House is willing to strike a deal to get the former Ohio attorney general confirmed.
During the winter and early spring as CFPB supporters continued to wait for the president to announce his CFPB nomination, it was assumed his pick could be installed as a recess appointment when Congress adjourns for its August recess.
But the Senate cannot officially recess in August unless it is approved by the Republican-controlled House of Representatives.
And that approval is not expected.
Presidents commonly turn to the Vacancy Act to fill vacant positions at various agencies when a nominee's confirmation gets tied up in the Senate. But the CFPB is a new agency and the president cannot claim there is a vacancy.
"Ways around the Senate confirmation process apparently are not available to the president," said Edward Wilson, a legal expert on the nomination process at Venable in Washington.