White House Could Make Jack Lew Acting OMB Director Any Time It Wants. Will It?

Over at OMB Watch, Sam Rosen-Amy has an interesting piece on how the White House could use a ruling from Bush 43 to name Jack Lew the acting director of the Office of Management and Budget.

The key is The Vacancies Act. But first, a brief summary of why this is even a question.

Rob Nabors, the OMB deputy director, left that post last year to move to the White House. The position has remained officially vacant since Nabors left and the work has been delegated to an acting deputy. Peter Orszag, the OMB director, left that position at the end of July.

The president has nominated Jack Lew, who was the last OMB director in the Clinton administration and is currently deputy secretary of State for management, which is a Senate-confirmed position, to take over OMB. Lew was approved with substantial bi-partisan support in committee, but Sen. Mary Landrieu (D-LA) has put a hold on the nomination because of differences with the White House on off-shore drilling.

The president could have made a recess appointment for Lew had the Senate actually recessed. But as a price for agreeing to the continuing resolution needed to keep the government operating and allow Congress to go home to campaign, the Republican leadership demanded that the Senate stay in pro forma session. As a result, recess appointments aren't possible. Because of this, Lew...and OMB...are in limbo just as the key phase of the fiscal 2012 formulation process gets underway.

According to OMB Watch, The Vacancies Act provides a way out for the administration.  Because Lew is currently serving in a Senate-confirmed position at another agency or department, because the OMB budget deputy slot is vacant, and as a result of rulings issued by the Office of Legal Counsel in Bush 43, Lew could be appointed acting director until the Senate (presumably) confirms his nomination.

The question is whether the White House would even consider that option.  It would clearly hurt and infuriate a Democratic senator whose vote could be crucial on a number of issues next year if, as expected, the Democratic majority falls to one or two from the current nine.  It would also anger Republicans who, in spite of the legal technicalities, would definitely claim that it was a violation of their continuing resolution agreement with the White House.

But the White House could claim that, given the importance of the budget, that the country must have an OMB director in place so that the fiscal 2012 budget process can begin on time when Congress convenes in January.

My guess is that the White House will wait...and wait...and...