01/03/2012 04:40 pm ET Updated Jan 03, 2012

Obama Skips Chance To Appoint Richard Cordray To Consumer Protection Agency

WASHINGTON -- President Barack Obama chose not to use his authority to appoint Richard Cordray to the Consumer Financial Protection Bureau on Tuesday, even though he had a brief window to do so.

Obama vowed last month not to take "any options off the table" when it comes to installing Cordray as the head of the new consumer agency, and when the Senate briefly recessed on Tuesday, advocates were hopeful the president's tough talk would translate to using his executive authority to bypass Congress and recess-appoint Cordray. That didn't happen.

The Senate now returns to holding a series of "pro forma" sessions -- or brief meetings in which no business is conducted and no recess appointments can be made -- until Jan. 23.

A senior administration official who spoke on background declined to say why Obama didn't seize the opportunity when he had it. The official also wouldn't give a timeline for when Obama might make future recess appointments for Cordray or other stalled nominees.

Corday's confirmation has been blocked for months by Senate Republicans, who say they like Cordray but want changes at the agency before they'll support him. Their demands include eliminating the director's position, creating an oversight board instead and requiring congressional approval of the agency's budget versus permitting it to draw funds from the Federal Reserve. Democrats counter that Republicans' real aim is to undermine the agency's work altogether.

Without a director, the CFPB, which began some operations in July, can't monitor the activities of non-bank entities that have been "the source of some of the most harmful, deceptive, unfair and predatory lending practices" that led to the financial crisis, Deputy Treasury Secretary Neal Wolin said last month. The agency is the brainchild of Harvard law professor and now-Democratic Senate candidate for Massachusetts Elizabeth Warren, and was created under last year's Dodd-Frank financial reform legislation.

A source familiar with the situation, who requested anonymity, speculated that Obama could appoint Cordray on Wednesday, though, legally, it is unclear how the president would do that since Congress isn't in recess. Obama is scheduled to give a Wednesday speech in Cleveland, Ohio, which is Cordray's home state and where he served as attorney general. According to the source, advocates have been hearing for weeks that the White House has wanted to tie an Ohio visit to a Cordray appointment.

"We think they'll do it tomorrow," said the source. "This seems very well-planned and timed."

White House aides declined to comment on how the president could appoint Cordray without the Senate being in recess. And top Senate aides in both parties reiterated on background that the chamber continues to be in a "pro forma" session, which leaves no clear path for the president to bypass Congress to make appointments himself.

"The Constitution says he can adjourn Congress, but only in 'extraordinary' circumstances (it's not), and only when the two houses disagree on the adjournment date (we don't)," said a senior Senate Republican aide.

The process by which Obama could appoint Cordray when the Senate is not in recess is "a question for the White House legal counsel," a senior Senate Democratic aide said. "We have literally nothing to do with it."