Tomorrow morning will be a little awkward at the headquarters of the so-called Consumer Finance Protection Board (CFPB) when two people show up claiming to be in charge.
One will be the hand-picked successor of Richard Cordray, Leandra English. The other will be Mick Mulvaney.
This is how it got started.
The law that sets up the CFPB (a law that I think will eventually be declared unconstitutional) says that if the director resigns, the deputy director becomes the acting director until a new nominee is confirmed by the Senate. On Friday morning, there was no deputy director at CFPB. That position had been vacant since January 2016. Early on Friday, CFPB director Richard Cordray announced he was resigning at the end of the day, not the end of the month and, by the way, he’d named his chief of staff, Leandra English, to the position of deputy director.
This move, to all appearances, was made with one thing in mind, that is, to stick a Trotskyite thumb in President Trump’s eye.
First the tweet.
The Consumer Financial Protection Bureau, or CFPB, has been a total disaster as run by the previous Administrations pick. Financial Institutions have been devastated and unable to properly serve the public. We will bring it back to life!
— Donald J. Trump (@realDonaldTrump) November 25, 2017
Then the action.
JUST IN: Trump designates OMB director Mulvaney as acting director of the Consumer Financial Protection Bureau after director Richard Cordray resigned earlier today. https://t.co/jn8limUSe7 pic.twitter.com/ZmXfCDovZ1
— CNBC Now (@CNBCnow) November 25, 2017
Then the office of legal counsel weighed in:
JUST IN: DOJ releases Office of Legal Counsel opinion by AAG Steven Engel, dated today, concluding POTUS can appoint acting director of CFPB under the Vacancies Reform Act. https://t.co/m67J8sy4C5 pic.twitter.com/Bb45OeeYQ8
— Chris Geidner (@chrisgeidner) November 26, 2017
And the utterly predictable reaction:
Congress had great foresight to mandate that the CFPB deputy fills the Director’s vacancy – to stop a bullying, tyrannical President from crippling the agency and undercutting consumers. That more recently passed provision trumps others. https://t.co/6HLb5WEMR9
— Richard Blumenthal (@SenBlumenthal) November 26, 2017
Leandra English, Cordray’s Deputy, IS the legal acting director of CFPB under Dodd-Frank. Trump’s attempt to install OMB’s Mulvaney as interim successor is null and void. The President is UNDER THE LAW, whatever anybody pretends. This has the makings of a constitutional crisis.
— Laurence Tribe (@tribelaw) November 25, 2017
This is the bottom line issue (in my view). We have three branches of government and someone directs the actions of those branches. The law establishing the CFPB effectively created a fourth branch of government. Not only was the director given protections from dismissal available to no other presidential appointee in the executive branch, the director was allowed to pick his own acting successor without input from the White House. The fact that the law allows a person who has not been confirmed by the Senate to assume a position on an acting basis that requires Senate confirmation is unique in the US government. Putting aside the current president, imagine another Obama administration where the president has an ally in the CFPB director and that administration is allowed to appoint anyone it wants without Senate confirmation simply by having them designated as deputy director and then having the director resign. This seems to have been a feature, not a bug, when the law was designed.
Democrats think the CFPB is their property in perpetuity.
Elections and consequences. These are things. https://t.co/VquXV3Nihv
— Drew McCoy (@_Drew_McCoy_) November 25, 2017
The controversy didn't start now. It started with the CFPB's creation. https://t.co/gjD05JtyMK
— Dan McLaughlin (@baseballcrank) November 25, 2017
This should be an open-and-shut decision. English should step aside and acknowledge Mulvaney as the interim director. She probably won’t because the left realizes that power is power, no matter how it comes to you. The next step will be the Department of Justice going into court to enforce Trump’s order. Given what we’ve seen of the federal judiciary in action since January 20, the judge will say, “I don’t care about the facts, Trump loses.” This will more likely than not end up at the Supreme Court where I’m hopeful the CFPB law is gutted, skinned, and Elizabeth Warren forced to wear it.