A ridiculous dispute. Left-winger Richard Cordray, the Obama-appointed chief of the Consumer Finance Protection Bureau, announced last week that he planned to resign soon from the job, presumably to run for governor of Ohio. He did in fact resign yesterday — but only after appointing Leandra English, the bureau’s chief of staff, to be his deputy director. Why would he care about that when he was already almost out the door? Because, under the Dodd-Frank statute that created the CFPB, the deputy director serves as acting director “in the absence or unavailability of the Director.” He appointed his own successor.
Not so fast, said the White House. After Cordray made his resignation official, Trump turned around and named OMB chief Mick Mulvaney, a harsh critic of the CFPB, to be its new acting director. How can he do that when Dodd-Frank says the deputy director becomes acting director? Turns out there’s another law on the books that conflicts with that one — sort of:
Yet the Federal Vacancies Act allows the president to install a temporary acting head of any executive agency who has already been confirmed by the Senate to another position, like Mulvaney has as leader of the Office of Management and Budget.
Still, the Vacancies Act says that an opening may also be filled if another law “expressly … designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity.”
It doesn’t say whether one approach supersedes the other, something the courts will likely have to sort out.
Trump gets to appoint Cordray’s permanent successor, of course, but it’ll take time to find a candidate, to hold the requisite Senate confirmation hearing, and to have a floor vote. If the Senate were controlled by Democrats, Schumer could conceivably delay confirmation hearings indefinitely or get his caucus to serially Bork anyone whom Trump nominates, leaving English in charge indefinitely. As it is, the GOP is eager to being remaking the CFPB and doesn’t want to wait months to get cracking. But that’s the position it’ll be in if the courts side with Cordray’s authority to fill his own vacancy rather than Trump’s.
Guess which side Elizabeth Warren is on:
— Elizabeth Warren (@SenWarren) November 25, 2017
Note the last line of the statutory excerpt. The president can only remove the director, once appointed, for good cause. Presumably that prevents him from simply firing English and naming a new acting/deputy director himself — if in fact she’s found to be the properly appointed acting director of the agency.
But she almost certainly won’t be. The idea that a now-former agency head can monarchically pass his scepter to a successor over the president’s objection, making the seat (temporarily) hereditary, is ludicrous. As a matter of basic accountability, it’s obviously better to have the president appoint an acting director of the CFPB than to let a guy who’s now out of government stick his own handpicked replacement in the job. The statutory language should be no bar to that finding either. Go back and look again at the excerpt Warren posted. It doesn’t say that the deputy director becomes acting director in the event of a “vacancy.” It says she becomes acting director if the director is “absent” or “unavailable.” Cordray is neither of those things; he’s not the director at all anymore! The position is vacant and Dodd-Frank says nothing about vacancy, in which case the Federal Vacancies Act should control. Mulvaney should be, and almost certainly will be, found to be the true acting director.
And Cordray almost certainly knows it:
My analysis: Cordray was leaving a job liberals care about to run for governor. He was going to get hit for that from Dem rivals in Ohio. He set up a fight with Trump so he could claim he left CFPB in good hands, even though Trump will win. He’s too smart to believe his spin.
— Jonathan Allen (@jonallendc) November 25, 2017
Right. It’s a pander to progressives by a guy who wants to protect his left flank in a Democratic gubernatorial primary. The surest way to earn cheap goodwill from the left is to make a showy gesture of sticking it to Trump. That’s what Cordray did by deputizing English and forcing a court battle. The fact that he’ll lose isn’t the point. The fact that he “fought” Trump is the point.
What makes this especially egregious is how Cordray himself first came to lead the CFPB. “Those defending Cordray’s action apparently believe powerful agency should be headed by someone not nominated by any President [and] not confirmed by any Congress,” tweeted Jonathan Adler this morning. Indeed, and Phil Kerpen savors the irony:
According to the guy who became the CFPB's first director via an illegal recess appointment while the Senate was in session, the president cannot designate an acting director when the position is vacant.
— Phil Kerpen (@kerpen) November 25, 2017
Before he was eventually confirmed by the Senate, Cordray became director of the CFPB via a recess appointment made by Obama at a moment when the Senate was still holding pro forma sessions. O made several NLRB recess appointments the same way. Republicans howled that the appointments were unconstitutional and the case went to the Supreme Court. Obama got nuked 9-0, an unusual unanimous ruling in a clash over the president’s and Congress’s respective powers. Cordray thus took the helm via a highly dubious, now defunct theory of extremely expansive presidential power and he wants his successor to take the helm under a similarly dubious, soon to be defunct theory of extremely limited presidential power. As the president’s party ID changes, so does Cordray’s view of what the president is lawfully empowered to do. Go figure.
Varad Mehta is right. To the extent there was any resistance among Senate Republicans before to letting Trump install a new director who’ll take a wrecking ball to the CFPB, a nasty partisan battle over the president’s basic power to appoint agency heads is apt to weaken it. The longer English stays put and becomes an antagonist to Republican voters, the more likely it is that McConnell’s caucus will end up rubber-stamping whomever Trump nominates in the name of dislodging her. This is going to backfire on Democrats, whatever the short-term gains to Cordray in earning some extra cred with Ohio’s left-wing voters.