At the end of Friday Consumer Financial Protection Bureau director Richard Cordray stepped down, naming a successor, CFPB chief of staff Leandra English as deputy director in his last official act. Moments later, popular vote loser Donald Trump announced that he was going to put his puppet—Office of Management and Budget Director Mick Mulvaney—in the post as interim director. So Monday morning, two people are showing up to lead the office. Only one—English—has the law on her side.
Lawyers for Leandra English, whom Cordray named the effective acting director when he resigned on Friday, filed the lawsuit in the US District Court for the District of Columbia seeking to halt the appointment of Mulvaney, who serves as head of the Office of Management and Budget and is also named in the lawsuit. […]
In their court filing, attorneys for English argue she is entitled to the position under the Dodd-Frank Wall Street reform law, which created the agency and says the deputy director becomes acting director when the agency’s top spot is vacant. When Cordray resigned, he named English, then his chief of staff, as deputy director, establishing her as the bureau’s acting director. […]“The President’s attempt to install a White House official at the head of independent agency—while allowing that officer to simultaneously serve in the White House—is unprecedented,” said English’s lawyer, Deepak Gupta of the law firm Gupta Wessler, in the statement on Sunday. “The law is clear: Ms. English is acting director of the Consumer Financial Protection Bureau until the Senate confirms a new director.”
Federal vacancies law would allow Trump to tap Mulvaney to step in, but the law Trump is relying on, the Federal Vacancies Reform Act, states specifically that it does not apply in the case of “a statutory provision […] designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity.” That’s precisely what the statute that created the CFPB does, as Sen. Elizabeth Warren (D-MA) pointed out late Friday, tweeting the statute and declaring the “Dodd-Frank Act is clear: if there is a
@CFPB Director vacancy, the Deputy Director becomes Acting Director. @realDonaldTrump can’t override that.“
It should be a slam dunk in court, but “should be” and the rule of law doesn’t seem to matter in government much these days. If Trump gets a friendly judge or two on his side, one as willing to destroy the very idea that regular people should have a way of fighting Wall Street as he is, all bets are off.