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Trump's Judge Decides Trump's Guy Should Run Consumer Financial Protection Bureau. Surprise!
Smirking granny starver gets a second job
A federal judge appointed by Donald Trump has ruled that Trump's budget director Mick Mulvaney is the true and legal acting director of the Consumer Financial Protection Bureau, even though the law that created the CFPB says the agency's deputy director should become the acting director in case of a vacancy at the top. The decision by US District Court Judge Timothy Kelly will allow the Trump administration to get to the important work of dismantling the agency from the inside and letting banks and payday lenders screw consumers however they want.
When former director Richard Cordray stepped down Friday, he said that, following the Dodd-Frank Act that set up the CFPB, deputy director Leandra English should be acting director until Congress confirms a new director. But Trump appointed Mulvaney, citing another, earlier law, and both English and Mulvaney showed up for work Monday morning. English had filed suit over the weekend to get an injunction to prevent Mulvaney from taking the job, but Tuesday afternoon's ruling puts Mulvaney in the position, at least for the immediate future.
When he was still in Congress, Mulvaney had dismissed the CFPB as a "sad, sick” joke and co-sponsored a bill to do away with it altogether.
The Trumpers were over the moon at the news, and reacted with typically dignified rhetoric. In a statement, White House spokesman Raj Shah said it was time for anyone who thinks consumers deserve "protection" to STFU:
It’s time for the Democrats to stop enabling this brazen political stunt by a rogue employee and allow Acting Director Mulvaney to continue the Bureau’s smooth transition into an agency that truly serves to help consumers
The consumers in this case would be financial institutions, of course.
English, who has been on the federal bench since September, ruled that Trump was allowed to appoint the acting director of his choice under the 1998 Vacancies Reform Act, which allows a president to fill open posts temporarily with any federal official who's already been confirmed by the Senate. Kelly wasn't persuaded that the language in the Dodd-Frank Act specifying the line of succession was sufficient to support English's claim that she should have the job:
“On its face, the VRA does appear to apply to this situation,” the judge ruled.
Specific laws generally supersede general laws. But Kelly said that while Dodd-Frank is more specifically related to the CFPB, the vacancies law is more specific in that it explicitly refers to a “vacancy.” Dodd-Frank does not use that word.
English had also argued that Mulvaney shouldn't be allowed to take the CFPB job while remaining head of the Office of Management and Budget, but Kelly said no law prevented Mulvaney from occupying both posts simultaneously like a common Jared Kushner.
The New York Times reports Mulvaney will spend three days of the week at CFPB making sure it doesn't protect any consumers, and the rest of his time at OMB coming up with reasons why Meals on Wheels is bad for America. Which raises an interesting question for Dalié Jiménez of the University of Connecticut School of Law, who had served for a year at CFPB as the agency got off the ground:
Does that mean that Leandra English as deputy director would be ‘in charge’ for the two days he’s not around? Mulvaney might move to demote or fire her at this point.
Politico says Kelly's ruling isn't subject to appeal, but other legal options are still available to English:
Deepak Gupta, English’s lawyer, told reporters that he would have to consult with his client about the next steps. These could either involve seeking a preliminary injunction or requesting a ruling on a permanent injunction, either of which could be appealed to a higher court.
“This court is not the final stop,” Gupta said. “This judge does not have the final word on what happens in this controversy, and I think he understands that.”
In addition, more than two dozen members of Congress filed a brief in English's case arguing that the Dodd-Frank Act made clear Congress didn't want control of the CFPB to be subject to presidential whim, which is why the succession language was included in the first place. That brief also included former Rep. Barney Frank, the "Frank" in that law, who ought to know a thing or two about the intent of the law:
Allowing the president to choose a successor under a different law would “mean that the bureau could be headed — potentially for many months — by an acting director handpicked by the president without the check of Senate confirmation, thus depriving the Bureau of the independence that was central to Congress’s plan in establishing it,” the brief said.
So while Mick Mulvaney is now free to get to work making sure the CFPB does nothing, this isn't over -- there will be more lawsuits, and at some point, presumably, Trump will have to appoint an actual replacement for Cordray, and that nominee would have to be confirmed by the Senate. Unless of course, Trump simply forgets to appoint anyone, and the agency limps along under Mulvaney until the administration thinks of a clever way to make it disappear forever. Not that they need to formally dissolve CFPB -- they can simply follow the EPA model, and redefine the agency's mission by declaring a never-ending Opposite Day.