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:
The Dodd-Frank Act is clear: if there is a @CFPB Director vacancy, the Deputy Director becomes Acting Director. @realDonaldTrump can’t override that. pic.twitter.com/r949ccaJAb
— 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:
Liberals seem to find that there is no legal way to do the things they want to do. Instead of telling them that what they want to do is WRONG, it merely inspires them to act illegally.
No, he did not appoint his own successor. He properly appointed an Acting Director, to serve until such time as a new director is nominated and confirmed in accordance with the law, after careful consideration and deliberation. He did so while still serving as Director, and it was entirely within the scope of his designated authority to do so. To do so was his responsibility.
The purpose of the provision in the Dodd-Frank Act that empowers the C.F.P.B. Director to appoint an Acting Director on the occasion of his or her departure is to prevent exactly the sort of bullshit Trump is now attempting.
The intention was to provide the C.F.P.B. with sufficient independence from both Congress and presidents to allow it to act in the best interests of the public, without being instantaneously politicized or neutralized by special interests or their elected toadies. This was not a partisan move; in so doing, Democratic law makers were also insulating the C.F.P.B. from their own partisan interference.
And this was why Obama installed Cordray as an illegal recess appointment? Because it was so pure? Can you name another agency that gets to name it’s own leaders?
By maintaining a succession of partisan liberal leaders?
richard cordray is a total failure. he lost several election for local and state offices in ohio. the terrorists who brought him to DC was a payback for supporting his run in ohio. asshole is a complete looser and the did noting while in the Consumer Finance Protection Bureau but sat on his dead ass, sucked down coffee and solicited backers for a return ohio politics. he team as told him he would make a great demorat president-he is truly a flunky at the hightest level.
FrankenDodd was created by the same liberals that created the social engineering which brought about the financial disaster FrankenDodd was supposed to address.
Liberalthink at work.
The C.F.P.B. doesn’t get to name its own leaders. Its departing Director is empowered to name an Acting Director, who serves only until such time as a new Director has been properly nominated by the President and confirmed by the Senate, in accordance with Article II, Section 2 of the Constitution.
This is intended to prevent posturing, monkey-ass jackanapes like Donald frickin’ Trump from improperly using the powers of the presidential office to instantly nullify a watchdog agency put in place to protect consumers from the totally predictable depredations of a consortium of well-manicured thieves, pickpockets, and financial sector shysters in three-thousand-dollar three-piece suits.
C.F.P.B. was created in the wake of the last epic financial sector shakedown, which left the entire national economy teetering on the brink of a total meltdown, in case you’ve forgotten. Of course those who benefited most from that train wreck—as in, it made them filthy rich—have been telling and retelling the tale that it was all because of the 1977 Community Reinvestment Act.
Oh. You mean like Obama did when he waited to make an illegal (Congress was in session) nomination? Obama made the precedent; Trump should just name whomever he pleases to head this failed agency. Cordray wasn’t confirmed by the Senate; why should Trump have to have his nominee confirmed?
@Bill… Deplorable Me, #7:
Richard Cordray was formally nominated to be Director of the C.F.P.B. by President Barack Obama on July 17, 2011. He was then confirmed to a five-year term in that position by the U.S. Senate on July 16, 2013, by a vote of 66 to 34. There was no necessity for the Vice President to be called in to push his appointment over the top. Cordray’s appointment had strong bipartisan support.
The one who’s attempting to deviate from the process as it is laid out in the law is Donald Trump.
But not before he did things HIS way (i.e., illegally). So, Trump can do the same thing; install his guy (or gal) and THEN get confirmation at some time convenient to him. Just like Obama.
@Bill… Deplorable Me: Honestly, I think President Trump will follow the letter of the law, he has a nominee now congress has its job to do. Its a temporary situation no need for anyone to get their panties in a wad.
Trump’s pick for consumer watchdog bureau orders freeze on hiring and rule-making
Leadership in the nation has been thrown into doubt ever since the idiot in the White House was sworn in before an imaginary record-breaking crowd after a 3-million popular vote loss—which truly is a record—and then ascended to what he imagines to be a throne rather than a desk chair.
@Greg: Waaaaaa booo hoooo, get over it, there were plenty of things we didnt like about the pen and phone dictator.
Less Government more fun la la la. Rules and laws are a job for Congress.
@Bill… Deplorable Me:
No, there was absolutely nothing illegal about any of it. In Cordray’s case, the nomination and confirmation process were entirely to the letter of the law. There was no question about any of it.
The initial recess appointment was made because the newly organized Consumer Finance Protection Bureau had no Director. Would you expect someone to stand up and appoint themselves?
Cordray, who had previously been hired as chief of enforcement for the new agency, was initially appointed to serve until the formal nomination process could be worked through, which it then was. The Senate took the matter of Obama’s appointment under consideration as the Constitution requires, and then put it to a vote. They formally confirmed him by a wide margin. It was only at that point that Cordray’s term as the first appointed and confirmed director began. The recess appointment obviously was not used as an evasion of the prescribed appointment and Senate confirmation process.
Hot Air, as usual, chooses to spin that in an entirely different fashion.
That would be another departure from reality. Trump is dictating by pen and phone to a far greater extent than Obama ever did. All one has to do is look at the number of orders and proclamations. Trump is presently on track to break all modern records for such presidential behavior. Obama doesn’t even come close.
Trump is on pace to sign more executive orders than any president in the last 50 years
@Greg: And out of the other side of your mouths you say he hasn’t done Anything, make up my mind lol
You know what the first action of the CFPD was? To spend millions to redecorate their offices. No, the government is being hamstrung by the crybaby, sore loser liberals that cannot accept the results of an honest election and cannot accept that the promises of Queen Hillary the media made them was broken. Warren wants to throw this to the confirmation and then stall it indefinitely while the CFPD continues Obama’s wishes… which is to hamper economic activity and growth. Why didn’t they discover the Wells Fargo scam instead of reacting to newspaper accounts? What WERE they doing, besides redecorating?
Yeah, that’s why the Supreme Court spanked Obama 9-0 and made him go through the proper approval process. Because it was so legal.
That’s because, in addition to his own directives, he has to REVERSE all the damaging edicts Obama left.