November 27, 2017

Yes, President Trump Can Replace Richard Cordray with an Acting Director

By Thomas Berry Attorney

On Friday, Richard Cordray resigned as director of the Consumer Finance Protection Bureau. Today, two people are claiming to be the lawful acting director of the CFPB: Cordray’s hand-picked deputy Leandra English, and President Trump’s designee, Office of Management and Budget Director Mick Mulvaney.

At the Federalist Society Blog, I delve into the ongoing legal dispute over who is the current lawful acting director. As I explain, both text and legislative history make it clear that the Federal Vacancies Reform Act allows President Trump to appoint Mulvaney:

The interpretive dispute centers on FVRA Section 3347(a), which states that the FVRA is itself “the exclusive means for temporarily authorizing an acting official … unless a statutory provision expressly … designates an officer or employee” to serve as an acting official. Since Dodd-Frank plausibly qualifies as such a statutory provision, some have argued that the FVRA does not apply to the director of the CFPB, and that Trump is therefore powerless to designate Mulvaney or anyone else as the acting director.

This argument is wrong. It is wrong, first and most fundamentally, because even if the FVRA is not “the exclusive means” to fill the CFPB slot, it is still an available means.  FVRA Section 3349(c) explicitly lists certain offices that the FVRA “shall not apply to,” including multi-member boards and Article I judgeships. If Congress wished for the FVRA to be unavailable whenever an office can be temporarily filled using another statute, Congress would have listed those offices under Section 3349(c). But it did not, and so “the exclusive means” should be read to mean what it says, and nothing more.

Read the whole thing here:

https://fedsoc.org/commentary/blog-posts/yes-president-trump-can-replace-richard-cordray-with-an-acting-director

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