ICYMI: 18 Democratic Attorneys General Join CFPB Resistance Against Mick Mulvaney

Posted: Dec 12, 2017 4:35 PM

We’ve covered the legal fiasco at the Consumer Financial Protection Bureau. Former director Richard Cordray resigned in November and tapped his deputy, Leandra English, to head the agency. Yet, this isn’t a temporary vacancy. Cordray is gone, fueling speculation that he’ll be running for the governor of Ohio. So, in accordance with federal law, the president has the power to select an acting director pending the approval of a permanent one upon the advice and consent on the U.S. Senate. So, President Trump picked Director of the Office of Budget and Management, Mick Mulvaney, to take the reins. Mulvaney and English have been dueling for the top spot. Both have signed emails as acting director. Mulvaney has to send one informing staff to disregard any directives from English. She has in turn, filed a lawsuit to block Mulvaney’s appointment; a judge ruled against her. For now, the attempted coup at the CFPB has been halted and Mulvaney is acting director.

It’s not official, but it seems as if English is the de facto leader of this resistance movement that’s bubbled up at the CFPB. According to The New York Times, some disgruntled staffers are communicating through encrypted devices, which is legally questionable, and call themselves “Dumbledore’s Army.” Mark Hemingway at The Weekly Standard notes that this could be creating a constitutional crisis:

For all the concern about the Trump administration breaking norms—which is not altogether illegitimate, by the way—the federal bureaucracy’s response could do just as much damage in the long run. The “Democrats’ #Resistance is creating a genuine constitutional crisis in which governmental power is not allowed by them to be peacefully transferred after a lawful election,” observes Georgetown law professor Randy Barnett. “The potential for escalation is very very dangerous.”

In the meantime, there is not enough contempt in the world for bureaucrats who will not bend to the proper political authority in this instance. Or as Adam White notes, “Congratulations, America: your mortgages, auto purchases, and credit cards are regulated by anonymous bureaucrats who fancy themselves as ‘Dumbledore's Army.’ Maybe ‘CFPB’ actually stands for ‘Children's Fantasy Playtime Bureau.’"

If you cannot work with a new administration, you leave. You resign. Period. That’s the nature of government work. It’s a public service. Regardless, one thing we forgot to mention is that multiple Democratic state attorneys general are throwing their support for English. The next legal battle over this begins on December 18 when the Justice Department has to respond to English’s legal team on her injunction filing, with a hearing set for December 22:

Attorney generals from across the country filed a brief on Friday to challenge President Trump's appointment of White House budget chief Mick Mulvaney to lead the Consumer Financial Protection Bureau (CFPB) as its acting director.

Seventeen states and Washington, D.C., filed the motion.

Former CFPB Director Richard Cordray promoted Leandra English to the deputy director position shortly before he stepped down. The CFPB succession rules established by the Dodd-Frank Act state that the deputy director becomes interim leader if the director resigns.

Yeah, like I said, the federal law on this is quite clear. Andrew McCarthy at National Review broke it down [emphasis mine]:

The lawsuit seeking to block this appointment, filed by the CFPB’s deputy director Leandra English — who hopes to take the job herself — is frivolous and offensive...Cordray was quite explicitly attempting to ensure that he, rather than the president, would choose his successor. Under the aforementioned CFPB statute, the deputy director serves as the director “in the absence or unavailability of the director.” Cordray was paving the way for English to argue that his resignation as director creates an “absence or unavailability” that makes her the director as a matter of law.

This is an absurdly strained reading of the statute. What Cordray has created is a vacancy. He is not merely absent or unavailable in the commonsense, temporary understanding of these words; he is gone...Although its progressive champions tout it as “independent,” the CFPB statute explicitly establishes it as an “Executive agency” as that term is defined by federal law. (The definition, in section 105 of Title 5, U.S. Code, includes “independent establishment[s].”) Under the so-called Vacancies Act (i.e., the Federal Vacancies Reform Act of 1998), “if an officer of an Executive agency... whose appointment to the office is required to be made by the President, by and with the advice and consent of the Senate, ... resigns,” the president has the authority to name as acting director a currently serving federal officer who has been confirmed by the Senate.