Elizabeth Warren furious over Trump’s CFPB appointment
“A member of the GOP anarchy gang has no business running the agency. This is a giant middle finger to consumers.”
Richard Cordray announced his resignation from the contentious Consumer Finance Protection Bureau (CFPB) two weeks ago. Friday, Cordray suddenly changed plans, and with no warning, left the agency a week before his scheduled departure date.
Prior to leaving, he appointed his Chief of Staff, Leandra English, to replace him as the Acting Director. The move was intended to fill the spot temporarily, forcing Trump to go through the confirmation process for a nominee, which could take months, before putting his own person in place.
But Trump didn’t wait, and appointed Mick Mulvaney as Acting Director and nominee. This sets up a turf war over who is Acting Director.
The New York Times reports:
President Trump on Friday named his budget director as the acting director of the Consumer Financial Protection Bureau, moving to take control of the agency hours after its departing leader had taken steps to install his own choice for acting chief.
By the end of the night, an agency born of the financial meltdown — and one Republicans have tried to kill from the start — had dueling directors, and there was little sense of who actually would be in charge Monday morning.
The bureaucratic standoff began Friday afternoon when Richard Cordray, the Obama-appointed leader of the bureau, abruptly announced he would leave the job at the close of business, a week earlier than anticipated. He followed up with a letter naming his chief of staff, Leandra English, as the agency’s deputy director.
The announcement came with a twist. Under the law, he said, that appointment would make the new deputy director the agency’s acting director. The move was seen as an effort to delay Mr. Trump from appointing his own director, whose confirmation could take months.
The White House retaliated, saying that the budget director, Mick Mulvaney, who once characterized the consumer protection bureau as a “sad, sick joke,” would be running the agency. He would also keep his current job as head of the Office of Management and Budget.
Mr. Mulvaney said he would assume the additional role until a permanent successor was found.
The CFPB has long drawn the ire of Republicans for functioning as a rogue agency, accountable to no one. Unlike other agencies, the CFPB doesn’t rely on Congress for budget allocations, but runs its own books.
From its creation, the CFPB has been Sen. Elizabeth Warren’s pet. Trump’s stifling of Cordray’s post-departure plans left the Massachusetts Senator enraged:
Mick Mulvaney thinks the @CFPB shouldn’t exist. A member of the GOP anarchy gang has no business running the agency. This is a giant middle finger to consumers. https://t.co/rDJ3BR2siO
— Elizabeth Warren (@SenWarren) November 17, 2017
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
.@realDonaldTrump can nominate the next @CFPB Director – but until that nominee is confirmed by the Senate, Leandra English is the Acting Director under the Dodd-Frank Act.
— Elizabeth Warren (@SenWarren) November 25, 2017
Cordray’s resignation imperiled Warren’s legacy, but to replace Cordray not with his own appointee, but an agency head openly hostile to the CFPB almost ensures Warren’s greatest governmental accomplishment will be unraveled in the course of months.
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Comments
Good! Warren is Po’d.
Better would be Trump’s temp appointment wins. Better yet is elimination of CFPB. Best is repeal of Dodd-Frank, but any repeal of any previously passed statute is something which likely won’t happen until after the next War Between the States.
Can the leftist replacement be charged with impersonating a federal officer if she attempts to do anything as acting director? That would be sweet!
No, she can make the case that she is acting in good faith, given her appointment.
My question is (related to Trump’s ability to name a new dept leader): does the serving Bureau leader have the ability to name his successor? I thought these bureaus were under the control of the Executive branch.
Was really hoping for more insight in to the legality of President Trump appointing an acting Head.
is COS a legal definition of a job or just a personal employee –
she certainly was NOT vetted by congress to take the position of agency head and POTUS has a greater right to name an acting head until a confirmation hearing can take place.
just think of all the mischief that the ‘former’ COS.
because in any case she would no longer retain the COS position!
with the sudden leaving of the head near the end of the year and congress being out of session until mid Jan 2018 – the mischief could be quite great.
that Fauxcahontas id also steamed is an add bonus.
what will any search into the resigning head turn up ?
bimbo eruption, cash manipulation, ghost employees ?
who Knows — all good that (D)’s not in charge of congressional agencies.
let the fun begin, too bad thos wasn’t last month in time for Halloween 😉
Yes. The question is whether the director’s resignation counts as his “absence or unavailability”. If it does, then Trump’s appointment is illegal, and Mulvaney should be arrested for trespassing the minute he sets foot in the director’s office.
But Trump can argue that the director is neither absent nor unavailable; rather there is no director, and thus the act doesn’t say who should take over, and since he is the executive branch he can decide who should run the agency until a new director is appointed. If that argument is correct (of which I’m far from convinced) then Mulvaney is in charge, and English remains his deputy.
“and since he is the executive branch he can decide who should run the agency”
I understand that there is something called the Vacancies Reform Act. It is a law passed by Congress and deals with… vacancies. The law Sen. Warren cites deals with… absences of “the” Director.
Is there some kind of long legal history of reading the word “absence” to mean “vacancy”, or did they just make this up today?
Even Trump’s OLC admits the director is currently “unavailable” within the meaning of the act. And OLC admits that this overrides the VRA’s provision that vacancies must be filled according to its rules. But it says that even so VRA remains as an alternative.
Repeal Dodd / Frank in its entirety.
Abolish the CFPB.
Should have been done the first week of Trump’s Presidency.
Should have been done, but it needs 60 votes to get through the senate, and that’s not possible.
not if it’s done as part of the budget.. assuming the House puts it in the budget then it’s 51 in the Senate
To go into reconciliation it has to be reasonably related to the budget, and it would be difficult to justify that. If I had to I’d argue that since the cost of compliance with this stupid law stifles the economy, repealing it will cause growth, which will increase tax revenue, so it affects the budget. But I’m not sure the Parliamentarian would accept that argument.
Yeah… they could zero-out funding for the agency – that definitely is budget-related.
Oh wait! The Demorrhoids set it up without funding in the budget.
I expect the Trump administration will argue that the law Warren cites as controlling, violates the Constitution. The president is the chief executive and all executive agencies are under his authority, period.
It sounds to me like an iron-clad argument. Unfortunately, the courts may not care.
That argument failed with the FCC, the Fed, the FBI, and several other agencies, whose heads have fixed terms and can only be fired for cause. There’s no reason it should do any better in this case.
He’s not trying to remove the head. The head removed himself.
I seem to recall President Bill Clinton firing FBI Director William Sessions in July 1993.
But I guess I must be mistaken.
–Andrew
Indeed, the FBI statute does not explicitly limit the president’s power to remove the director, and I was mistake in listing that office; but the CFPB statute does.
Trump simply did what Obama did. Obama appointed Cordray without the confirmation process. Seemed OK then, didn’t it? This nightmare bureaucracy needs to be dismantled. It is already replicating the bad loan policies that led to the economic and mortgage market collapse of 2007. Liberals can’t help themselves: the race of the applicant is more important than the ability to pay on the loan.
No, he didn’t. Stop lying. 0bama made an illegal attempt to appoint him during a non-existent recess, and it was not OK. When the Supreme Court told him he couldn’t do that, he nominated him in the normal way and the senate confirmed him. Trump has to go through the same process.
The only relevant question is whether the term “absence or unavailability of the director” includes the director having resigned or died. If it does, then Trump is wrong; if it doesn’t then he’s right.
No, this is not a new confirmation. This is an already confirmed head of a higher-level agency being directed to take over the subordinate agency operations until a new head is nominated and confirmed, a much different creature entirely. (And seems just fine on the surface)
Except that the statute says who shall run the agency in the director’s “absence or unavailability”, and Trump cannot override that. So the only question is whether a nonexistent director is “absent” or “unavailable”.
@realDonaldTrump can’t override that.
Two bits of wisdom from a recent Democratic President—
“I won.”
and
“I’ve got a pen and I’ve got a phone.”
If one reasons that the sauce which is good for the donkey is good for the elephant, then that’s the end of the problem.
“Unlike other agencies, the CFPB doesn’t rely on Congress for budget allocations, but runs its own books.”
That neferious reality alone is reason enough to abolish the agency, imho.
Note to Senator Faux-cohontas, For good or ill, Pres. Trump has a pen and phone, too. Suck it up, buttercup.
“This is a giant middle finger to consumers.”
No, Fauxahontas. It’s a giant middle finger to YOU.
Screaming Fauxcahontas: for all you do – this middle finger’s for you.
She is the Hysteric Pro Tem of the United States Senate.
A nauseating fraud, too.
“agency head openly hostile to the CFPB almost ensures Warren’s greatest governmental accomplishment will be unraveled in the course of months.”
Unraveled? Not by a long shot.
this is real easy, fire leftist “acting director” for “inefficiency” before even going to court or being sued in court. case closed as it’s the line after the Constitutionally violating line.
I think we’ve missed a point here.
What is the normal procedure for a Federal Agency Head departing? Can (and has) the POTUS assigned a Department entity to take control of the headless agency in the past?
And knowing how the Trump administration has shown the ability to long-term plan, I’m willing to bet their CFPB head appointee is already pre-vetted and ready to be passed to the Senate in a few days, at worst.
“Normal procedure” is irrelevant because CFPB is not a normal agency. Its establishing statute specifically gives it far more independence than any agency ought to have.
I notice that at another legal blog, Volokh, leftist commenters are going completely loony. I’ve noticed there of late EVERY court decision against Trump is handed down from on high, and is completely in accordance with the Constitution, even when it obviously isn’t.
Apparently Trump had no power to do anything as President because of that special invisible line in the Constitution that prohibits anyone named Trump from exercising the powers of the office.
There have been court cases in the past that prohibit Congress from ceding it’s own powers to third parties and prohibiting it from ceding Presidential powers to third parties. Allowing an agency head to designate their own replacement is a Constitutional violation no matter what the law creating the CFPB says. Matter of fact, establishing a self funding agency seems pretty much outside the bounds of the Constitution.
I recall telling Progressives that they wouldn’t like living under the “rule of whim” they sought to impose on others.
Ah, well. 🙂
–Andrew
But the thing is, I hate the GOP just slightly less than I hate the Dems. As fun as it is to watch Trump light up a pissing match amongst Obama cronies, this stuff is not good for the country in the long run.
I’m a fan of the rule of law.
That requires that both parties agree to the same set of rules. The Progressives have burned that house down.
–Andrew
Bingo.
We live in 2 different and separate worlds now.
Time for an update, Kemberlee – apparently DoJ’s OLC has made the statement that Trump can, under law, make the appointment for interm: http://dailycaller.com/2017/11/25/doj-deals-blow-to-liberals-okays-appointment-to-lead-finance-regulator/
Here’s the opinion. It makes a decent argument, but hardly a waterproof one. It cites only one case on point, and it’s a 9th circuit case so caveat emptor, but one is better than none.
I meant to note, it’s a 9th circuit case supporting an 0bama appointment, so any emptor should especially caveat.
For those who won’t bother reading it, the Vacancy Reform Act says it’s the exclusive way of filling vacancies unless the specific statute covering the position says otherwise. In this case the statute does say otherwise, but OLC’s position, supported by a 9th circuit case last year, is that this only means the VRA is not the exclusive way to fill the vacancy, but it’s still an available way, and the president has two choices — he can follow the CFPB statute or the VRA, whichever one he likes. In order to completely override the VRA, the CFPB statute would have to specifically say so.
There is probably no real need for us to contort ourselves in trying to understand where this woman derives her authority from.
Democrats will do what Democrats have always done and just shop around for a conveniently placed compliant Obama appointed Judge who will rule in their favour regardless of the actual law.
Its just what Democrats do.
You have it exactly backwards. The CFPB statute very plainly says this English woman has the authority. OLC says that even so the VRA gives Trump an alternative which he may choose to use instead, and if the CFPB drafters didn’t intend this they should have said so. Maybe they’re right, but their only support is from precisely the compliant Democrat judges of whom you’re complaining.
She should read the constitution again (law professor??) the executive runs the executive branch. There are no independent government bureaucracies though they have been behaving like they are owned by the democrat party.
So … you’re saying that there’s no explicit Constitutional provision for two independent Executive chains of command.
Pay attention. The contra argument is that the language setting up the CFPB provided that bureau with far more independence than is normally seen, including the appointment of the bureau head.
…On the other hand, we seem to have at least one ruling which supports Trump’s point of view, so we have that going for us.
Isn’t she so adorable! Acting all “presidential” and “for the little guy”. She did NOTHING about Wall Street’s insane excesses, ever… Investors have little choice nowadays but to try to comprehend whatever bubble is building up early enough to cash in.
Actually, it’s a giant middle finger to Warren.