Consumer Financial Protection Bureau deputy director Leandra English Sunday filed suit against President Trump and White House budget director Mick Mulvaney in order to ensure she takes over as head of the CFPB instead of Mulvaney on Monday.
English, who was named the deputy director of the CFPB Friday by outgoing director Richard Cordray, is supposed to take over the reins of the bureau until a permanent successor is confirmed by the Senate, according to the Dodd-Frank Act of 2010 that created the bureau.
However, the White House argues Trump has the authority under a 1998 law to appoint Cordray’s interim director. On Friday, Trump appointed Mulvaney to the post where he would serve in addition to his role as director of the White House Office of Management and Budget.
Now it appears the question of who’s in charge on Monday will be settled in the courts.
“Effective at midnight on November 24, 2017, the Bureau’s first Director, Richard Cordray, resigned his post. At that point, plaintiff Leandra English, the Bureau’s Deputy Director, became the agency’s Acting Director by operation of law,” the lawsuit states.
“The Dodd-Frank Act is clear on this point: It mandates that the Deputy Director ‘shall . . . serve as the acting Director in the absence or unavailability of the Director.’ By statute, she serves in that capacity until such time as the President appoints and the Senate confirms a new Director.”
English wants a temporary injunction placed on Mulvaney’s appointment, allowing her to take over as interim director until the case can be heard in front of a federal judge.
The lawsuit was filed in the U.S. District Court for the District of Columbia Sunday night.
English’s lawsuit states Trump’s authority to appoint an interim director to an executive agency ends when there’s another law that expressly lays out how that agency’s director should be replaced.
“The President apparently believes that he has authority to appoint Mr. Mulvaney under the Federal Vacancies Reform Act of 1988,” the lawsuit states. “But the Vacancies Act, by its own terms, does not apply where another statute ;expressly . . . designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity,’ which is exactly what the Dodd-Frank Act does. The President’s interpretation of the FVRA runs contrary to Dodd-Frank’s later-enacted, more specific, and mandatory text.”
It remains to be seen if that argument will hold up. Adam White, research fellow at the Hoover Institution and director of the Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School, tweeted English “butchered” her argument.
“The quoted statute does *not* suggest that it “does not apply” when another statute pertains,” White tweeted. “Rather, it says that it is not “exclusive” when another statute pertains.”
WOW— CFPB Deputy English flagrantly butchers a key statutory provision on p.2 of her lawsuit against Trump.
The quoted statute does *not* suggest that it “does not apply” when another statute pertains.
Rather, it says that it is not “exclusive” when another statute pertains. pic.twitter.com/fNsqkHZXV0
— Adam White (@adamjwhitedc) November 27, 2017
Former Rep. Barney Frank, one of the co-authors of the law, told reporters earlier this weekend the law was crafted to give the bureau independence from the administration in power. He said he and former Sen. Chris Dodd wanted to keep the bureau out of politics and devised the process of appointing an acting director in such a way to keep it apolitical.
The law states that in the event that the director leaves the position leading the CFPB then the deputy director takes over as acting director on an interim basis. Until just before Cordray resigned, there was no deputy director — English was serving as the agency’s chief of staff. But, Cordray made her deputy director in one of his last acts.
White House supporters have argued Cordray, by appointing English deputy director of the agency just before he resigned, essentially picked his own successor and that goes against the spirit of the law.
The state of affairs got even more complicated Sunday night after the lawsuit was filed.
Reuters reported the CFPB’s internal lawyer, Mary McLeod, prepared a memo siding with the Trump administration and arguing the president has the authority to appoint Mulvaney as acting director of the agency. The memo, which is expected to be circulated on Monday, has yet to be released.
The battle has become a proxy war of Obama and Trump officials. CFPB employees are worried Trump and Mulvaney, who have both been extremely critical of the agency, will gut it of the responsibilities and protections bestowed upon it by President Obama during his administration. At the same time, Trump officials see the CFPB as an obstinate agency set on harming businesses — namely big banks — they want to surge to spur economic growth.
The Justice Department issued an opinion Saturday arguing Trump has the right to choose his own appointees under the Federal Vacancies Act.
