The federal official chosen by the outgoing Director of the Consumer Protection Bureau (CFPB), an Obama Administration holdover, has filed a lawsuit over President Trump’s decision to appoint budget director Mick Mulvaney as acting director rather than to allow the Deputy Director, Leandra English, to assume the post.
The lawsuit filed on Sunday claims the President overstepped his authority in appointing Mick Mulvaney as acting director in which it cited a provision outlined within the Consumer Financial Protections Act. The Consumer Financial Protections Act was passed under President Obama and established the CFPB as a federal agency. The CFPA contained a provision of succession which gave authority to the vacating director to appoint an acting director while a permanent nominee under goes a confirmation process. Leandra English was appointed to director by the outgoing director, Richard Cordray.
President Trump’s decision to appoint an acting director is supported by the Federal Vacancies Reform Act of 1998 (FVRA) however, the top Democrats from both the House and the Senate, Chuck Schumer (D-NY) and Nancy Pelosi (D-CA), have taken issue with the President’s decision to exercise his authority. Both Chuck Schumer and Nancy Pelosi believe Deputy Director Leandra English should serve as director until a new nominee is confirmed. Senate Minority Leader Chuck Schumer made the following claim in a statement:
“The Trump Administration is ignoring the established, proper, legal order of succession that we purposefully put in place, in order to put a fox in charge of the hen house.”
The Trump Administration is supported through the DOJ’s Office of Legal Counsel (OLC) in which they issued a memorandum regarding the President’s decision. The OLC argued that the President had every legal right to appoint an acting director through the provisions outlined in the Federal Vacancies Reform Act of 1998. Furthermore, the OLC noted the President harbors the authority, through the FVRA, to override the succession provision outlined within the Consumer Financial Protections Act (CFPA).
On Saturday the CFPB’s top general counsel issued a memorandum to the Senior Leadership Team of the CFPB, which included Leanne English, in that she agreed and sided with the Trump Administration’s decision to override the succession provision within the CFPA. Nevertheless, she persisted; Leanne English filed her lawsuit in District Court in Washington D.C. on Sunday.
But that did not stop Mick Mulvaney from assuming the role of acting director for the CFPB on Monday morning, as instructed by President Trump. Mulvaney was reportedly given access to the director’s office as he went on to order all CFPB staff to disregard any claims form Leanne English that she is the acting director.
The resignation by the outgoing Director of the CFPB Richard Cordray did not come as a surprise nor did the Trump Administration’s appointment of an acting director via the FVRA. The following is an excerpt from Alan S. Kaplinsky’s analysis of this vary matter, published in the Consumer Finance Monitor on July 31, 2017:
“Our analysis indicates that under the Federal Vacancies Reform Act of 1998 (Vacancies Act) President Trump could appoint an Acting Director should Director Cordray resign. The Vacancies Act provides that when an ‘executive agency’ position requiring confirmation becomes vacant because the person holding the position ‘dies, resigns, or is otherwise unable to perform the functions and duties of the office,’ it may be filled temporarily by someone serving in an acting capacity in one of three ways. The first way is for the “first assistant” to such a position to assume the functions and duties of the office. However, the President has the option of using one of two other ways. The President can (1) direct an officer in any agency who is occupying a position requiring Senate confirmation to perform the functions and duties of the office, or (2) select any officer or employee of the subject agency who is occupying a position for which the rate of pay is equal to or greater than the minimum rate of pay at the GS-15 level and who has been with the agency for at least 90 of the preceding 365 days to perform the functions and duties of the office.”
This is the latest example of the Democratic Party’s attempts to obstruct the agenda outlined by the Trump Administration. In this particular situation, Democrats attempted to circumvent the authority held by the Oval Office, as directed by the Federal Vacancies Reform Act, in an effort to appoint an acting director who agrees with liberal ideology. Had the Trump Administration relented to the assertions of Chuck Schumer and Nancy Pelosi, it would have surely lead to a long and arduous confirmation process for any nominee President Trump would have selected. Thus allowing Leanne English to continue efforts in applying liberal ideology within another federal bureaucracy.
The Consumer Protection Agency was established as a knee-jerk reaction to the 2008 financial crisis and was created as a watchdog group for the consumer when doing business with banks and credit cards as well as student loan and mortgage holders.