The Consumer Financial Protection Bureau's director resigned last week and named his chief of staff, Leandra English, acting director. Citing a statute predating the Dodd-Frank Act (which created the CFPB), the Trump Administration appointed the current OMB Director, Mick Mulvaney, to run the CFPB.
The result is chaos:
On Monday, Mulvaney occupied the CFPB director’s office, dispensed excellent New England doughnuts and emailed the agency staff to “disregard any instructions you receive from Ms. English in her presumed capacity as Acting Director.” English, for her part, sent her own email greetings to agency staff — and filed a lawsuit calling Mulvaney “the person claiming to be acting director” and herself “the rightful director” of the CFPB.
The legal question turns on whether the FVRA gives the president an option for appointing its head — i.e., the deputy or someone else — or whether the text of Dodd-Frank forecloses that option. The FVRA says it is the “exclusive means” of filling a position, except if another statute specifies a particular acting successor. English’s proponents argue that Dodd-Frank does precisely that. Better yet, in doing so it uses the word “shall,” not “may.” That word “shall” is significant, legal scholars such as Marty Lederman emphasize.
The Office of Legal Counsel in the Justice Department, by contrast, issued an opinion defending the president’s right to use the FVRA procedure. Perhaps more surprisingly, so did the CFPB’s own general counsel Mary McLeod. Quoting an earlier Office of Legal Counsel opinion, McLeod concluded the fact that the FVRA “is not exclusive does not mean that it is unavailable.” That is to say, the FVRA may not be the only way to handle the matter, but it is a possible (an “available”) way, and it’s up to the president to make the call — as other legal scholars such as Adam White emphasize.
On Tuesday, a district court judge declined to grant a temporary restraining order against Mulvaney’s claim to the CFPB throne. That does not settle the merits of the case, of course. And in the meantime, other subplots abound.
One is that the judge in the case, Timothy Kelly, was appointed by Trump and only took the bench in September.
The whole analysis is worth a read. Because like just about every other action of the current administration, it's bloody insane.