A panel of three judges appeared to remain unconvinced, just as a lower court did, that Leandra English has a rightful claim to be the acting director of the Consumer Financial Protection Bureau and should replace Mick Mulvaney, who was named acting director by President Trump.
The panel of judges from the Court of Appeals for the District of Columbia heard oral arguments in the suit filed by English against President Trump and Mulvaney yesterday. English filed the suit last November, after Mulvaney was appointed by Trump following the resignation of former director Richard Cordray, who left the CFPB to run for governor of Ohio.
Cordray had promoted English to deputy director in the hours before he submitted his resignation. The Dodd-Frank Wall Street Reform & Consumer Protection Act says that the deputy director shall assume the responsibilities of director in the event the director is unavailable. The President, meanwhile, used the Federal Vacancies Reform Act as justification for appointing Mulvaney. Which law takes precedence is the crux of the case.
But a published report indicates that the judges were skeptical that Mulvaney, who is also the director of the White House Office of Management & Budget, can hold both offices at the same time.
Because Congress went to great lengths to ensure the CFPB remains independent from the rest of the federal government, naming someone who has a job within the executive branch may infringe on that independence, the judges mentioned.
Judge Patricia Millett said that appointing Mulvaney as acting CFPB director certainly has the effect of making the CFPB’s actions accountable to OMB, even if that is not the statutory requirement, and indeed counter to Congress’ express wish to make the CFPB independent of OMB.
“He is wearing two hats at the same time,” Millett said. “If we’re talking about straining things, it seems a strain to suggest that Mr. Mulvaney would wake up and say, ‘I wish to do this as CFPB director, but of course as OMB director I think that’s a terrible, horrible thing to do.’”
Published reports indicated that the judges did not appear to be swayed by the argument that English is the rightful heir to the CFPB throne until President Trump nominates a permanent replacement who is confirmed by the Senate.
