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Two Bosses at CFPB Resolved by Court Decision
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By: Teri Bernstein

images of Leandra English and Mick Mulvaney from Heavy.com

 

When Richard Cordray resigned last week as head of the Consumer Financial Protection Bureau (CFPB), he followed the law that established the independent consumer watchdog agency: he appointed his deputy director,Leandra English, as acting director. But then President Trump double-appointed his Office of Management and Budget pick, Mick Mulvaney, to the same position, claiming that all agency positions were his to appoint. 

 

Ms. English filed a lawsuit on Sunday against both Donald Trump and Mick Mulvaney, seeking a restraining order to block Mulvaney's appointment.  But on Monday, Mr. Mulvaney showed up to work earlier than Ms. English with doughnuts and instructions to staff to ignore Ms. English. 

 

The confusion about who should fill the vacancy rests on two laws with conflicting procedures for appointments--one of which may or may not apply to the CFPB (quotations are from the Charlie Savage article linked below):

 

  • The 2010 Dodd-Frank Act, which created the CFPB as an independent regulating agency said "that the deputy director, who is appointed by the director, 'shall' serve as acting director if that position becomes open." Those supporting this interpretation read the word "shall" to be definite rather than a possible suggestion.
  • The 1998 Vacancies Reform Act--not directed at a specific agency--includes a default position that overlaps Dodd-Frank (that the deputy director should assume the position of acting director). It also, however, "gives presidents the option of instead appointing as acting head any other executive branch official who has already undergone Senate confirmation, as Mr. Mulvaney has. [The Vacancies Reform Act ] procedures are the 'exclusive means' of temporarily filling a position unless another statute expressly designates an acting successor. Since Dodd-Frank does just that, the question is whether the 2010 law superseded the Vacancies Reform Act for the purpose of the Consumer Financial Protection Bureau."

 

By late on Tuesday, Judge Timothy Kelly ruled that the 1998 law superseded the 2010 Dodd-Frank Act and cleared the way for Mick Mulvaney to head the CFPB.  But it appears that Mulvaney would like to deregulate himself out of the job. Slate cited his testimony to the House Subcommittee on Oversight and Investigations: "I don’t like the fact that CFPB exists, I will be perfectly honest with you.” Mulvaney also co-sponsored HR 3118, a bill to eliminate the CFPB.

 

Sources:

Discussion: 

  • Who did you want to prevail as head of the CFPB? Why?
  • What might you have done if you reported to the director (or acting director) of the CFPB and you were at work on Monday with two bosses in conflict? If you have been in a situation where you have observed or have been a person reporting to two bosses, discuss the issues that arise as a subordinate. 
  • Listen to these views of the CFPB: The Young Turks interviewing Elizabeth Warren and Ralph Nader on Fox NewsDo either of these interviews help you better understand the Consumer Financial Protection Board? Why or why not?