Will control of a key government agency come down to … the healing power of doughnuts? OMB Director Mick Mulvaney showed up bright and early at CFPB headquarters, starting off his day by sharing deep-fried confections and an order to ignore the bureau’s deputy director. Leandra English also fired off a memo instructing CFPB staff to follow her commands and ignore the newly appointed interim director.
But did English bring donuts? Or did she show up at all?
English sent an email in which she welcomed staff back from the Thanksgiving holiday and signed off as “acting director,” according to a source.
But Mulvaney quickly installed himself in Cordray’s former office and stood his ground, writing in a staff email an hour later:
“Please disregard any instructions you receive from Ms. English in her presumed capacity as Acting Director,” he said in a memo seen by Reuters. “If you receive additional communications from her today … please inform the General Counsel.”
Mulvaney also signed off as “acting director” and invited staff to pop by his office on the fourth floor to “grab a donut.”
Mulvaney wanted everyone to see him on the job:
— john czwartacki (@CZ) November 27, 2017
Reuters notes in its report that no one has confirmed whether English had arrived at the building as of mid-morning. Perhaps she got a call from CFPB’s general counsel, which concluded over the weekend that English doesn’t have a case. If she’s not in the building, it’s going to make it more difficult for her to retain control over the staff, but they would presumably be more sympathetic to her than to Mulvaney, who had earlier argued for getting rid of the CFPB altogether:
Mulvaney has previously argued in favor of killing the bureau, calling it a “joke” in a 2014 interview. Mulvaney was a congressman at the time.
“You’ve got an institution that has tremendous authority over what y’all do for a living,” he told the Credit Union Times. “Over your business, over your members, but there’s very little that your elected members of government can do to help you to protect you against, say, overreach or abuse by that institution. So, it’s extraordinarily frightening.”
A few doughnuts probably won’t make up for that, but then again, Mulvaney might have included some Bavarians in the mix. Bavarians make up for a lot. At the moment, though, most of the employees worrying about job security are focused on the present fight, according to the New York Times, and whether they’re going to get canned for responding to either “idiot”:
Ties between the Trump White House and the federal government’s top consumer financial watchdog agency were so frayed by the end of Thanksgiving weekend that hundreds of confused employees came to work not knowing who their director would be.
“I knew on Friday who my boss was,” an employee for the agency, who only gave his first name, Ella, because he was concerned about his job security, said as he approached the bureau. “But thanks to this idiot, I don’t know.”
(He did not clarify which idiot.)
Interestingly, this report also doesn’t make clear whether English showed up for work. Ceding the ground to Mulvaney might create a momentum that will be hard to reverse. Mulvaney might have enough clout to revoke English’s access to the building today if she’s not already persona non grata, but that could exacerbate the legal situation ahead of that showdown. Jonathan Adler concludes that Mulvaney can afford to be patient about that fight:
For the same reasons that five justices on the Supreme Court were unwilling to approve the novel structure of the Public Company Accounting Oversight Board in FEF v. PCAOB, I suspect that a majority of the court will feel uncomfortable with the CFPB’s novel structure (a structure already found unconstitutional by a three-judge panel of the D.C. Circuit in a case recently reheard by the en banc court).
This discomfort is only likely to be magnified by English’s central claim: that Cordray could place the vast powers of the CFPB in the hands of someone who was never named or confirmed by either the president or the Senate, and that there’s nothing (short of getting a new CFPB director confirmed) that the president can do about it. This would take agency independence to a new level. (It would also raise other constitutional questions relating to the validity of the English appointment and whether Trump could remove her that I suspect this court — and the chief justice in particular — would like to avoid.)
Adler also points out that Trump could moot the whole court case in a few weeks:
The White House can make this case go away with the Senate’s cooperation, either by nominating and confirming a permanent head of the CFPB or, should the Senate take a recess over the holidays, making a recess appointment to head the CFPB. Either way, the CFPB would have a new director picked by the current president, mooting English’s claims.
Mitch McConnell could set that one up with a valid recess, one that will fit within the newly restricted presidential authority delineated in NLRB v Canning almost four years ago. Given the backlog on the legislative calendar, that might be tough to pull off; McConnell wants every day he can get to confirm judges and to work on a budget deal to avoid a shutdown. A recess appointment would last at least until August, giving Trump plenty of time to find another candidate to run the CFPB on a more permanent basis.
But that’s not going to be absolutely necessary, and Trump might want to win this one in court. That way he can force Democrats to keep arguing in favor of self-perpetuating unaccountable bureaucracies and remind voters why Republicans may still be the least-worst option in 2018.
Addendum: The prospect of fighting it head-on got a lot better for Trump and the GOP:
And we have a judge: Newly confirmed DC federal district judge Timothy Kelly has been assigned to the CFPB fight pic.twitter.com/0z1pSz5U9j
— Zoe Tillman (@ZoeTillman) November 27, 2017
— Seung Min Kim (@seungminkim) November 27, 2017