Mick Mulvaney marched into the D.C. headquarters of the Consumer Financial Protection Bureau Monday morning with Dunkin Donuts.
Office of Management and Budget Director Mulvaney, thanks to a sudden resignation and a subsequently speedy administration appointment, has now become Acting CFPB Director Mulvaney. The only problem? The outgoing director appointed his chief-of-staff, Leandra English, as successor, thereby setting up a confusing and controversial power vacuum.
Bureaucrats and regulators started their work week not knowing who was in charge of the agency. Suddenly, bringing donuts to work didn’t seem like such a bad idea.
Exits and Entrances
Richard Cordray officially clocked out of the CFPB early on Friday. The very first director of the CFPB had been appointed by President Barack Obama in 2012 and had more than eight months left in his five-year term. Before leaving the agency, Cordray his “decision to reassign Leandra English to the position of deputy director, a reassignment she has accepted and that has been effectuated.”
Unwilling to allow an Obama appointee to take the reins, President Trump countered Friday night with his designation of Mulvaney as interim director. That budget wonk and administration loyalist, the White House said in a statement, would serve at the CFPB “until a permanent director is nominated and confirmed.”
Legally speaking, who’s the boss?
Lawyering up quickly, English in federal court against the administration and Mulvaney, “in his capacity as the person claiming to be acting director of the Consumer Financial Protection Bureau.” And Monday morning, English sent out staff-wide emails signed “acting director.”
As the two claimed the same title, armies of lawyers drew battle lines — the English camp appealing to section 1011(b)(5) of the Dodd-Frank Act and the administration to the Vacancies Reform Act of 1988.
“The Dodd-Frank Act is clear,” tweeted Sen. Elizabeth Warren in support of English “if there is a @CFPB Director vacancy, the Deputy Director becomes Acting Director. @realDonaldTrump can’t override that.”
Others insist instead that federal vacancy law precedes and supersedes the CFPB. “By designating OMB Director Mulvaney to serve as Acting CFPB Director,”Adam White of the Hoover Institute, “under 5 U.S.C. 3345, there is no vacancy (or, more precisely, no “absence or unavailability”) to be filed by the CFPB’s Deputy Director per 12 U.S.C. 5491.”
Who is in control?
According to the White House, Mulvaney walked into the director’s office with breakfast cakes in hand and the “full cooperation” from agency staff. No doubt that confidence was buoyed by both the top lawyer at the CFPB and the Justice Department.
The top lawyer for the U.S. Consumer Financial Protection Bureau (CFPB) has concluded that President Donald Trump has the authority to name its acting director, three sources familiar with the matter said on Sunday, rejecting an effort by her former boss at the agency to name his immediate successor.
The office of CFPB General Counsel Mary McLeod has prepared a memo concurring with the opinion of the U.S. Justice Department that Trump has the power to appoint his budget chief, Mick Mulvaney, as temporary leader of the federal watchdog agency, according to the sources, who spoke on condition of anonymity.