Now that Richard Cordray, the first Director of the Consumer Financial Protection Bureau, has stepped down, President Trump wants his current budget director, former Republican congressman Mick Mulvaney, to head the CFPB in his spare time. It’s no wonder that he’d entrust the agency created to protect average Americans from unfair lending practices to a loyalist who flatly opposes the agency’s mission. But apart from his tendency to undercut nearly anything achieved during his predecessor’s tenure, and his ongoing demonstration that he cares not much about protecting the little guy — the “forgotten men and women” he waxed about with faux earnestness in his inaugural address — the president is going about it in a way that’s plainly illegal.
It’s bad enough Trump wants the CFPB to be led by a man who once called the agency a “joke.” He’s willing to run roughshod over Congress to do it.
Under the explicit text of the 2010 Dodd-Frank financial reform act, which created the CFPB, Deputy Director Leandra English became CFPB’s “acting Director” at midnight on Nov. 24, when Director Richard Cordray resigned his post and thereby became “unavailable” within the meaning of the law’s specific provision for that contingency that the Deputy Director will “serve as acting Director in the absence or unavailability of the Director.” Even the Justice Department’s Office of Legal Counsel acknowledged, in its Nov. 25 memo to White House Counsel Donald McGahn, that this language applies, conceding that “the resignation of the Director would satisfy the requirement of ‘absence or unavailability.’ Therefore, the statute would permit a properly appointed Deputy Director to serve as the Acting Director during a vacancy.”