Two Acting Directors, One Bureau

By James Sweet III | USA

The Consumer Financial Protection Bureau, an independent federal agency established by the Dodd-Frank Act, is surrounded by controversy. Again. On November 24th, Director Richard Cordray left the agency. He named Leandra English as Deputy Director on his way out, making her Acting Director until a new Director was appointed, as stated in Dodd-Frank. However, President Donald Trump had a different Acting Director in mind, appointing Mick Mulvaney, head of the Office of Management and Budget. A legal battle is ensuring, as both sides have reasons behind their decisions. Grab some popcorn.

Title X of Dodd-Frank was what established the CFPB, and those on the side of Leandra English point to this as their legal backing. This backing can be found under Subtitle A of Title X. It is stated that the Deputy Director shall “serve as acting Director in the absence or unavailability of the Director.” With there being an absence of a Director, it would seem like a logical thing to say that Leandra English is the rightful Acting Director. However, those in support of Leandra English are forgetting about another important law: the Vacancies Reform Act of 1998.

The Vacancies Reform Act of 1998 does agree with Dodd-Frank when it comes to one thing: the Deputy Director will become the Acting Director of an agency until a new Director is appointed and confirmed. However, the Vacancies Reform Act has more to say. It states that the President of the United States “may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity”. Mick Mulvaney’s current position in the Office of Management and Budget required appointment by the President, as well as confirmation by the Senate. By meeting these requirements, and Dodd-Frank not giving itself an exception to this law, Mick Mulvaney, legally, the rightful Acting Director of the CFPB, and many people agree.

The Justice Department’s Office of Legal Counsel has stated that Dodd-Frank “does not displace the President’s authority under the Vacancies Reform Act.” The General Counsel of the CFPB has also stated that President Trump has the authority to appoint Mick Mulvaney. The White House also stated that the President consulted the Justice Department before making his move.

Leandra English has filed a lawsuit in the U.S. District Court for the District of Columbia, asking for a temporary restraining order in an attempt to stop Mulvaney from taking temporary control of the agency. Mick Mulvaney entered the CFPB office, was welcomed by senior staff, and was treated as Acting Director. Many believe this is just a partisan attack against President Trump and Director Mick Mulvaney, as both are critics of the CFPB. What do you think?

To read Title X of Dodd-Frank, click here.

To read the Vacancies Reform Act, click here