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General counsel for the CFPB disagrees with Elizabeth Warren on agency head replacement (Update)

General counsel for the CFPB disagrees with Elizabeth Warren on agency head replacement (Update)

Showdown at the CFPB

The showdown at the Consumer Financial Protection Bureau is a perfect microcosm of the difficulty unraveling Obama’s rule by bureaucracy.

Two weeks ago, CFPB chair Richard Cordray announced his resignation. Cordray had run the rogue agency, accountable to no one, as his own personal liberal policy shop, doing little to meet the needs of consumers. Cordray didn’t stay the two weeks he’d originally planned.

Instead, he announced last minute (and a week before his scheduled departure) he was leaving immediately and named his Chief of Staff, Leandra English, as his interim successor. Doing so would, Cordray believed, deny Trump the opportunity to appoint his own interim director. But Trump is Trump and so he appointed his own interim director, Mick Mulvaney.

Leaving everyone working at the agency in the middle of an odd and probably uncomfortable spat:

English, the interim director appointed by outgoing director Cordray, has ignored the advisement of the executive branch and is going on with business as usual, using the title ‘Acting Director’.

Unmoved, a donut-wielding Mulvaney sent his own statement to CFPB employees saying:

“Please disregard any instructions you receive from Ms. English in her presumed capacity as Acting Director,” he said in a memo seen by Reuters. “If you receive additional communications from her today … please inform the General Counsel.”

Mulvaney also signed off as “acting director” and invited staff to pop by his office on the fourth floor to “grab a donut.”

Enter Sen. Elizabeth Warren, who championed the creation of the CFPB which has since been her own personal pet.

Friday, Warren feverishly dug into agency bylaws to contest Trump’s ability to appoint his own interim director:

Sen. Warren is expected to meet with English Monday afternoon.

General counsel for the CFPB disagrees with Warren on this one. Interestingly, they’ve sided with the Justice Department in agreeing Trump has the authority to point his own interim director. Sunday, English filed a complaint and temporary restraining order against Trump and Mulvaney, respectively, over what she believes is her legal right to lead the agency until Congress confirms the next permanent director.

Politico reports:

In a memorandum obtained by POLITICO, CFPB general counsel Mary McLeod said Trump had the legal authority to name an acting director to the bureau under the Federal Vacancies Reform Act.

“It is my legal opinion that the president possesses the authority to designate an acting director for the bureau,” McLeod wrote in the Nov. 25 memo to the CFPB leadership team. “I advise all bureau personnel to act consistently with the understanding that Director Mulvaney is the acting director of the CFPB.”

Yet even as McLeod’s memo was circulating, Leandra English, former CFPB Director Richard Cordray’s choice to serve as acting director of the watchdog agency, sued the Trump administration in U.S District Court in Washington.

In her lawsuit filed late Sunday, English named Trump and Mulvaney as defendants and asked the court to establish her authority as acting director.

“Ms. English has a clear entitlement to the position of acting director of the CFPB,” the filing claims. “The President’s purported or intended appointment of defendant Mulvaney as acting director of the CFPB is unlawful.”

No one is impressed:

They say this like it’s a bad thing:

The complaint:

Leandra English v. Trump – Complaint by Legal Insurrection on Scribd


Leandra English v. Trump – Motion for Temporary Restraining Order by Legal Insurrection on Scribd

And memo:

Leandra English v. Trump – Memo of Law in Support of Motion for Temporary Restraining Order by Legal Insurrection on Scribd

UPDATE – The Government’s Opposition

Leandra English v. Trump – Govt Opposition to Motion for Temporary Restraining Order by Legal Insurrection on Scribd


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Ms English….something about you, and the horse you rode up on….

I wonder who is paying for the law suit?

    Edward in reply to mailman. | November 27, 2017 at 2:30 pm

    Well, Fauxcahontas is a millionaire, even though she pretends to be one of “the people” (as long as “the people” are “her kind of people” and we’re not talking Cherokee Tribal members). She could fund the suit, though English will – I suspect – try to get the CFPB to pay as she is “defending” the agency, in which case all consumers will be paying as the funding for the CFPB comes out of fees assessed financial institutions by the Federal Reserve. If that fails, it might well be “pro bono” work by Leftists who will write off their charges as either “public works” or “losses”.

    regulus arcturus in reply to mailman. | November 27, 2017 at 4:17 pm

    Mulvaney just said English is suing in her private capacity.

    CFPB has not approved of the lawsuit, so it is being privately funded.

      “Mulvaney said” doesn’t make it true. Her position (which is not at all unreasonable) is that she is CFPB, and I have no doubt that she has ordered CFPB’s accounts payable department to pay for it. Whether it will do so depends on how the court rules.

        regulus arcturus in reply to Milhouse. | November 27, 2017 at 4:48 pm

        So you didn’t watch his presser.

        CFPB did not approve of the lawsuit.

        Mulvaney is CFPB, not Ms. English.

          Only according to him. English’s position, which if you have any shred of honesty you must admit is strong, is that she is CFPB, and she has approved it.

          regulus arcturus in reply to regulus arcturus. | November 27, 2017 at 4:55 pm

          Absolutely not. English’s lawsuit is fraudulent on its face, which explains why you give it credence.

          Mulvaney is acting under the authority of the president, English is not (and apparently did not show up today).

          CFPB falls within the Executive Branch, over which the Executive exercises full agency management authority.

          The problem with CFPB is the statute is written to contradict this settled constitutional empowerment issue.

          If you want to trigger a full SC hearing, go for it. That is what should happen in this case.

          It is an excellent opportunity to define bureaucratic limits, and stop leftists from their bureaucratic conquest to destroy the Constitution.

          You know very well that the courts have long held that Congress can limit the president’s authority to fire certain Executive branch officials. That’s why he couldn’t fire Cordray the minute he was sworn in. (I’d have been delighted if he’d tried it anyway, and urged the courts to overturn this precedent, but he didn’t.) OLC isn’t claiming the CFPB statute is unconstitutional, it’s claiming that despite its plain language it was not meant to override the VRA completely, but merely to offer a competing arrangement. In other words, OLC is claiming that Congress knowingly and deliberately set up this conflict just to create employment for lawyers to sort it out. That’s implausible.

          regulus arcturus in reply to regulus arcturus. | November 27, 2017 at 5:23 pm

          Firing is not what happened here.

          A head of an executive branch agency resigned, at which point the president is empowered to name a replacement.

          Agencies are not empowered to self-select their own ministers and directors.

          This is a constitutional slam dunk at SC.

          Agencies are not empowered to self-select their own ministers and directors.

          The statute explicitly says that this one is. If Trump believed the statute is unconstitutional he should have fired Cordray on day one. By not doing that he acknowledged that Congress does have the power to limit his authority in this way, and all the precedents agree. Therefore if your argument were to come before the SC it would be likely to fail. Still, it would be a good case to make. But Trump isn’t making it. The OLC acknowledges Congress’s power but claims that it chose not to exercise it in this case. We shall see how Judge Kelly rules.

          regulus arcturus in reply to regulus arcturus. | November 27, 2017 at 6:29 pm

          The Vacancies Act supersedes any statute. This should have been corrected ab initio, however constitutional executive authority is well defined with respect to appointments within the executive branch. End of story.

          The Vacancies Act supersedes any statute.

          Um, what?? Which insane asylum did you escape from to come up with such an obviously stupid claim? How can you expect anyone to take you seriously after having made it?

          Note to all for all time: regulus arcturus seriously claimed that “The Vacancies Act supersedes any statute.”

          regulus arcturus in reply to regulus arcturus. | November 27, 2017 at 7:13 pm


          The Vacancies Act supersedes any statute with respect to the president’s Article II powers of appointment. No statute may limit presidential authority in that area. None.

          Feel free to take the opposite side of that argument for $1000, joker.

          You idiot. The Vacancy Reform Act is a statute. That’s what “Act” means. By definition it is superseded by any later statute that conflicts with it. It has nothing to do with Article II of the constitution.

          What a maroon.

          regulus arcturus in reply to regulus arcturus. | November 27, 2017 at 7:23 pm

          You are the moron, as always Milhouse.

          The Vacancies Act affirms the ability of the executive to fill head of all agencies within the executive branch.

          If you argue otherwise, you lose.

          regulus arcturus in reply to regulus arcturus. | November 27, 2017 at 7:29 pm

          Ex-federal prosecutor Andy McCarthy agrees with me –

          Although its progressive champions tout it as “independent,” the CFPB statute explicitly establishes it as an “Executive agency” as that term is defined by federal law. (The definition, in section 105 of Title 5, U.S. Code, includes “independent establishment[s].”) Under the so-called Vacancies Act (i.e., the Federal Vacancies Reform Act of 1998), “if an officer of an Executive agency . . . whose appointment to the office is required to be made by the President, by and with the advice and consent of the Senate, . . . resigns,” the president has the authority to name as acting director a currently serving federal officer who has been confirmed by the Senate.

          Moreover, deputy director English ought to be fired for insubordination. No matter how one feels about President Trump, he is the head of the executive branch. He has the authority to fire the heads of executive agencies at will. The Obama Democrats’ attempt to create an “independent” executive agency whose Obama-anointed director could be removed only for cause violates the Constitution. It is curious that Trump did not remove Cordray, but he has plainly complied with federal law in appointing Mulvaney on an acting basis. It is outrageous that a subordinate executive branch official is suing the chief executive over a personnel decision.

          [my emphasis]

          You are dismissed, little boy.

          Again, what a maroon. McCarthy does not claim, as you do, that the Vacancy Reform Act, a statute passed in 1998, can possibly supersede a statute passed in 2010!

          The constitutional argument is irrelevant to this. If Congress can’t restrict the president’s power to fire executive employees then it doesn’t matter what the Vacancy Reform Act says. But so far the courts have consistently and for decades held that Congress can do so. And Trump acknowledged that by not firing Cordray. The OLC takes the same position. And if he can’t fire Cordray then he can’t fire English either.

          regulus arcturus in reply to regulus arcturus. | November 27, 2017 at 7:40 pm

          You are absolutely, entirely, and fully clueless.

        The plaintiff’s attorneys are from Gupta Wessler PLLC in DC. Seem pretty high powered group there. Left wing. Here’s the last paragraph from their homepage of their website :
        “This fall, the firm is also proud to be battling Donald Trump on multiple fronts. We’re prosecuting two lawsuits challenging the President’s violations of the Constitution’s Emoluments Clauses. On October 18, Deepak Gupta argued the first of the cases, CREW v. Trump, in New York; read our brief here. And, on November 15, he argued the appeal of the Trump University fraud class action in the Ninth Circuit.”

          MarkSmith in reply to derf. | November 27, 2017 at 9:16 pm

          Isn’t CREW cheerleader Melanie Sloan the one accusing Conyers of being Captain Underpants? Is that the same CREW?

          MarkSmith in reply to derf. | November 27, 2017 at 9:22 pm

          So Gupta Wessler appears to be behind justifying the CFPB. Intersting. We need a map of all the players in this.

        Are you EVER right?

        Never seen anything like your record.

It seems odd even by Warren’s standards to post the text of a law which very obviously does not say what she claims it says.

Of course, she is an Affirmative Action hire, which probably explains a lot.

    Massinsanity in reply to tom_swift. | November 27, 2017 at 4:06 pm

    Reason number 342 as to why she is an embarrassment to my home state.

    Milhouse in reply to tom_swift. | November 27, 2017 at 4:31 pm

    It does say that the Deputy Director becomes Acting Director. It doesn’t explicitly say that this is the only way an Acting Director may be appointed, but it’s the simplest and most obvious reading. Tell me, have you read the Memo of Law (last document) supporting Ms English’s claim? It directly addresses the OLC’s opinion, and makes some very good arguments against it.

    Particularly it points out that Hooks (the only case OLC could cite, which was a 9th circuit decision last year in favor of 0bama, so it’s pretty suspect in the first place) deals with a statute that gives the power to fill a vacancy to the president — the same person whom the VRA authorizes. Therefore it makes sense that even if the existence of the specific statutory provision means the VRA is not the exclusive means of filling the vacancy it remains one means by which it may be filled, and the president has the choice which one to use. In that case a situation like this could not arise, because the president will obviously use only one of the two alternatives. He won’t appoint one person under the statute and one under the VRA. But where, as in this case, the statute specifically provides for the vacancy being filled without the president’s involvement, it makes no sense to say that he has a choice whether to use the VRA or the statutory method. That can only lead to precisely this conflict, and therefore can’t be what Congress intended when it passed CFPB.

    I don’t know who’s right on this one, but anyone who, without being paid to do so, claims it’s obvious that Trump is right is either an ignorant fool or a dishonest hack. And nobody who has not read both the OLC and Gupta memos has any right to comment.

      tom_swift in reply to Milhouse. | November 27, 2017 at 8:32 pm

      It does say that the Deputy Director becomes Acting Director.

      So what? Who replaces whom is irrelevant to this action. The conditions determining when that replacement takes place are the important factor. As per the text, the substitution takes place when certain specified conditions have been met. Those conditions have very obviously not been met in this case; Warren’s rephrasing of Congress’s written words doesn’t change that.

I thought Fauxohantas was a lawyer?

and by her actions English hands Trump a reason to fire her. A totally legit reason to fire a dope.

All the employees care about is which acting director can fire them. They must all be miserable, but as bureaucrats, they all probably deserve a little misery.

“Ms. English has a clear entitlement…” Ya, just gather your belongings before leaving.

I think Trump will win on this one, regardless, so it’s delicious shadenfreude to watch Fauxcahontas wet herself with hysteria over this incestuous extra constitutional fustercluck at the CFPB.

From what I understand, the CFPB is funded by the federal reserve, and not via Congress, yet as a regulatory agency over banks it is under the umbrella of the Executive branch, but the POTUS isn’t allowed to appoint is own director due to vacancy?

Yup. The CFPB is an obamanation production that can only be described as an incestuous extra constitutional fustercluck.


    The statute should certainly be repealed, but so far it hasn’t been, so it remains the law, which the president must obey. And it says Ms English is the acting director. Nothing in the VRA seems to give him the authority to replace an existing acting director.

      Yes, we agree. It is the law, and must be obeyed until repealed. But we all know how this ‘pen & phone’ game is played for ever expanding executive, regulatory power (which I think is a great threat to Liberty).

      This law will quickly appear before SCOTUS for a ruling, and in light of section 2 of the US Constitution, I think the court will be incredulous that this is even a thing. IE: A bureau inside the executive branch is not subservient to the assigned authority of the chief executive, nor subject to congressional oversight?

      This is tyranny writ large snd is Obama’s legacy.

Trump has the law and precedent on his side, and the CFPB counsel knows it. The precedent admits that when two statutes concerning appointments and succession are in conflict, the President can use either one as he sees fit.

    Milhouse in reply to jeffweimer. | November 27, 2017 at 4:35 pm

    Wrong. When two statutes are in conflict the later one always prevails. The OLC memo tries to argue that there’s no conflict, but the obvious counter is that if that were so this situation couldn’t arise.

      Tom Servo in reply to Milhouse. | November 28, 2017 at 7:40 pm

      Wow Milhouse, what a legal Ex-spurt you are! One day later and you have been shown to be an absolute legal fool, and a total blowhard who knows nothing about actual statutory interpretation.

Very simple way around this one. The President needs to remove the Ms. English. The malfeasance is accepting money or things of value (labor) from a third Party to fund a lawsuit against the United States.

    Milhouse in reply to counsel. | November 27, 2017 at 4:47 pm

    1. What makes you think she’s done so? It seems far more likely that her lawyers will send the bill to the Bureau, and she will order it to pay them.

    2. If she has, how is it malfeasance? If she is the lawful acting director (which the statute says she is) then she has every right to accept donations on the bureau’s behalf.

      counsel in reply to Milhouse. | November 27, 2017 at 5:03 pm

      Send the bill to the Bureau? That too would be malfeasance. You need to review the Federal Governments gift policy.

        Milhouse in reply to counsel. | November 27, 2017 at 5:22 pm

        Of course send the bill to the bureau. If she’s the acting director, as the creditor maintains, then it’s a legitimate bureau expense.

In the previous thread, I asked if this reading of “absence” as meaning “vacancy” is something that they just made up now, or something with a long, well-documented legal history. Having read the memo by Mary McLeod, General Counsel for the CFPB, I am firmly convinced that the former is true and the latter is false. Even if the two words were read to mean the same thing, there would be legal arguments supporting the Trump position, but there is no good reason to do so.

I continue to see the wording of “the Director” rather than “a” or “any Director” as also indicating that absence or unavailability is having your plane delayed in Dubai, or being down with the flu, not having resigned. It seems history is with me, not just the plain reading of the words.

    Milhouse in reply to JBourque. | November 27, 2017 at 5:07 pm

    You are being dishonest. The relevant word is not “absent” but “unavailable”. Even the OLC admits that this word does apply here. The director is unavailable, and therefore the statute provides that the deputy director is automatically the acting director. OLC’s only claim is that since Congress didn’t explicitly say “and the president may not appoint an acting director under the VRA’s provisions”, therefore he may do so.

      Have you actually read the McLeod memo? The Politico links to it. If your case is that the OLC is the only legal authority with the right to an opinion on the matter, I do not care for lectures from you on dishonesty.

      At any rate, it is my opinion that the director is not “unavailable”; he has resigned. There is a vacancy. The statutes are not in conflict. And, Cordray would have had to be more than a director to choose his successor rather than his deputy; he would have to be a king. I believe I am on safe ground arguing that this was not the case.

        Milhouse in reply to JBourque. | November 27, 2017 at 5:54 pm

        Of course I’ve read the McLeod memo. I’ve also read the original OLC memo on which hers is based, and the opposing Gupta memo. Have you?

        No, of course I don’t claim the OLC is the only legal authority with the right to an opinion on the matter. How on earth could you possibly derive such a ridiculous proposition from my words? On the contrary, I explicitly wrote that the OLC’s opinion is just that and nothing more. The OLC are Trump’s lawyers, and they’ve come up with a plausible argument for why he can do this despite the statute’s plain language. McLeod agrees, but Gupta has offered a competing argument which is at least as strong, and in my opinion stronger.

        Your dishonesty was in focusing on the term “absent” as if it were relevant. The relevant term is “unavailable”, and even the OLC and McLeod acknowledge that it does apply.

        And no, you are not on safe ground at all making that argument. It contradicts the statute, which explicitly states its goal of making Cordray independent of the president, i.e. a king. This is one of the reasons why the statute ought to be repealed as soon as possible. But it hasn’t been, so for now it’s the law, and Trump is not free to ignore it.

          So you genuinely believe it is not possible for the CFPB to have a vacancy so long as there is a living, available Deputy Director.

          Well, fine. If that’s what all the great lawyers of the government agree upon… the rest of us just have to sigh and move on with our lives.

          Milhouse in reply to Milhouse. | November 27, 2017 at 7:12 pm

          No, of course not. There clearly is a vacancy, and the statute says who runs the agency during one. The president does not have the authority to override that. OLC does not dispute this, but claims that by not explicitly excluding the VRA, Congress intended that its scheme would only be carried out if the president chose not to appoint someone under the VRA. That’s plausible enough to get into a court room, but it’s certainly not overwhelming, and seems to me weaker than Gupta’s argument.

The Department of Justice’s Office of Legal Counsel (OLC) released an opinion Saturday identifying President Donald Trump’s legal authority to name an interim director of the Consumer Financial Protection Bureau (CFPB).

General counsel for the CFPB agrees.

When/if English does show back up for work, she can immediately be fired for insubordination. Suing your boss saying you have the legal authority to usurp his position qualifies.

Milhouse is really reaching here today to say Trump doesn’t have the legal right to exercise executive authority over an executive agency.

    Milhouse in reply to gospace. | November 27, 2017 at 5:20 pm

    The OLC’s opinion is just that; its own opinion. It is not the law. The same applies to the bureau’s general counsel. Not even they claim that English’s position is obviously wrong. No honest person could make such a claim. Anyone who has read both memos must acknowledge that both positions have merit, but it seems to me that hers is stronger. And if her position is right she is the boss, and Mulvaney is a trespasser. He is the one usurping her position. We’ll see what the court says about that.

    I’m not the one saying Trump doesn’t have the legal right to exercise executive authority over an executive agency, Congress said it, the courts have thus far upheld its authority to say it, and Trump himself acknowledged it by not firing Cordray on Jan 20th, as he certainly ought to have done if he had the authority.

      tom_swift in reply to Milhouse. | November 27, 2017 at 8:43 pm

      and Trump himself acknowledged it by not firing Cordray on Jan 20th, as he certainly ought to have done if he had the authority.

      I can’t believe that anything with a functioning central nervous system could write anything so spectacularly irrelevant to the matter at hand, not to mention outright bizarre … at least with any seriousness. My conclusion is that you are deliberately being obtuse.

        Gremlin1974 in reply to tom_swift. | November 27, 2017 at 9:11 pm

        That is Milhouse’s MO. He always argues the negative, frankly I think he just like to argue. He is also typically proven wrong in the end.

          No sarcasm here: some of us have always suspected milhouse is no more than twelve years old.

          We must be right. Though he might be 13 by now.

          Milhouse in reply to Gremlin1974. | November 27, 2017 at 9:54 pm

          Typically, eh? Why don’t you cite a few cases? You can’t because they are very few.

          I argue because I care about honesty and I don’t care whose ox is gored. Most commenters here, particularly FineReport and gonzotx, don’t give a sh*t about the truth, or consistency or logic, or about liberty, or law, or anything but defending their Golden Calf no matter what he says or does. They’re worthless bums, who add nothing to this blog, and should be banned.

          Gremlin1974 in reply to Gremlin1974. | November 27, 2017 at 10:11 pm

          Put your pearls away and quit clutching Milhouse it wasn’t meant to be an insult. Someone needs to argue the other arguments. It was an observation nothing more.

        Milhouse in reply to tom_swift. | November 27, 2017 at 9:56 pm

        If Trump thought he had the authority to fire Cordray, why didn’t he? Why did he leave such a malign influence in place, except that he accepted that the law forbidding him from doing so is valid?

ugottabekiddinme | November 27, 2017 at 5:27 pm

Fauxcahontas is to meet Leandra English Monday afternoon on Capitol Hill? Great! Send over the locksmith and change the locks at the rogue CFPB.

Looking at the law and how it written, there is in everyday English as spoken and understood, a huge difference between the words “the and a.

(B) Serve as acting Director in case of absence or unavailability of THE Director.

There is no “the Director” for English to serve in place of. The law quite clearly doesn’t state the deputy director will serve in place of “a” Director if there is none but that the deputy director shall serve in place of “the” Director should said Director be unavailable. Based on common everyday understanding of the English language and how it works, English has absolutely no standing.

Of course, lawyers and courts often serve solely to undermine clear understanding of clear wording. I’m certain the ninth circus would invoke the invisible line in the Constitution that says no one named Trump is allowed to exercise executive authority in order to undermine the clear and unconfusing meaning using commonsense comprehension of how the English language works.

    Milhouse in reply to gospace. | November 27, 2017 at 6:14 pm

    Bzzzt. Even the OLC says you’re wrong, and that “unavailability” includes a vacancy.

      gospace in reply to Milhouse. | November 27, 2017 at 6:29 pm

      Bzzt… Lawyers exist to obfuscate clear meaning of the English language, as do you apparently.

        Milhouse in reply to gospace. | November 27, 2017 at 6:31 pm

        Even your own side says you’re wrong. How much clearer can that be?

          gospace in reply to Milhouse. | November 27, 2017 at 6:40 pm

          English is English, and not hard to understand. There is no “The Director”. If there is no “The Director” then “The Director” is not unavailable. “The Director” is non existent. There is a huge difference between “non-existent” and “unavailable”. It takes a lawyers reasoning to fail to see that. Ordinary people can see the difference quite clearly. Lawyers exist to obfuscate the English language.

          Milhouse in reply to Milhouse. | November 27, 2017 at 6:55 pm

          Laws are written in Lawyer, not in English. Your position is the same as claiming that you can understand a French or Swahili document by reading it as if it were English, while your own interpreter tells you you’re wrong.

Look, every word Mulvaney said about the CFPB is correct. It is a sick, sad joke, and it ought to be burned to the ground. I hope whomever Trump nominates as the permanent director openly declares at his confirmation hearing that this is what he intends to do, and I hope the senate confirms him to do it.

But that doesn’t change the fact that English has a very strong case that she is now the lawful acting director, that Mulvaney is a trespasser, and that anyone who obeys his orders is guilty of insubordination and malfeasance. It’s all a question of what the incredibly bad statute means; what the Democrats who passed it meant by it.

    Milhouse, I decided to look up the rules for another federal agency, the Dept. of Agriculture, for reference. In that case, the Deputy Secretary becomes Acting Secretary in the case of the death, resignation or inability of the Secretary to run the department. There’s nothing strange or wrong about that.

    What is bizarre is the argument that in such a situation, there is no vacancy, and the Secretary of Agriculture seat is filled, and therefore the Vacancies Reform Act cannot apply, because, in effect, there is no such thing as a vacancy; therefore, the Vacancies Reform Act is null and void, save in some Tom Clancy novel situation where the entire leadership of a department is taken out by terrorists.

    If that is really the case, then fine. I’ve heard stranger.

      Milhouse in reply to JBourque. | November 27, 2017 at 7:07 pm

      Nobody says there isn’t a vacancy. That’s ridiculous. If there were no vacancy then Trump could not nominate someone to fill it, which he will shortly do. There is a vacancy, and the statute says who runs the bureau during it. The Vacancy Reform Act says how the president should fill vacancies unless the relevant statute says otherwise, which this one does.

      OLC’s position is that even in such a case the VRA remains an alternative, unless the statute explicitly says that it doesn’t. It could find only one decision supporting that position, a 9th circuit decision from last year, upholding an 0bama appointment. You will surely agree that that’s weak support, but on the other hand there are no decisions to the contrary.

      But Gupta points out that that decision was in a case where both alternatives were in the president’s hand, so it’s plausible that Congress intended to give him a choice, whereas in this case the statutory scheme takes the decision out of the president’s hands, so the president has no choice between two alternatives, and it’s implausible that Congress deliberately intended to create exactly the conflict that has now arisen.

        The website won’t let me reply to your other remark, so I’ll quote and go on.

        “No, of course not. There clearly is a vacancy, and the statute says who runs the agency during one. The president does not have the authority to override that.”

        Which is an argument that the Vacancies Reform Act does not exist, it is a dead letter, it is a national joke, and Congress did not grant the President such authority – it merely pretended to, and we should all just ignore it and go on with our busy lives.

        Yes. Fine. If that’s really it, and every single department that fills “unavailability” is actually filling “a vacancy”, then there might as well not be any “reform” act regarding vacancies at all, and it is a big joke. I have no further time for it.

          Milhouse in reply to JBourque. | November 27, 2017 at 7:31 pm

          Are you really that stupid, or just pretending to be? Nobody claims there is no vacancy. That is a straw man argument, and you were dishonest in making it. Nor does anyone claim the VRA doesn’t exist. That is yet another straw man argument, another proof of your dishonesty. The VRA obviously exists, and provides the exclusive means by which vacancies are to be temporarily filled except when some other statute makes a different arrangement.

          The CFPB statute says who shall run the agency during a vacancy. Everyone agrees on that too. Therefore everyone agrees that in this case the VRA does not constitute the exclusive means to temporarily fill the vacancy. The only question is whether Congress meant to completely rule out the VRA’s method (presidential appointment), or meant to leave it as an alternative.

      In the case of the Sec. of Agriculture and the Deputy Sec. of Agriculture, they’re both political appointees who serve at the pleasure of the President, so it’s not quite apples and oranges. If the SecAg goes away, the DepSecAg is going to naturally operate as SecAg until a new one is appointed, and if the DepSecAg squawks about it, he/she/it would be gone in a heartbeat.

    sequester in reply to Milhouse. | November 27, 2017 at 7:36 pm

    Switch back to decaf dunga din. (@milhouse).

A judge has been appointed … The judge named was appointed by Trump earlier this year … Was a former aide to grassley

    Milhouse in reply to Aggie95. | November 27, 2017 at 6:15 pm

    You’re late. The hearing started at 4:30. I’ve been searching for any news from it. Nothing yet, which implies it’s still going.

Why has Congress not dispensed with this atrocity? Pass legislation dissolving it. Before the courts have a chance to declare it unconstitutional. Make it moot!

    Milhouse in reply to derf. | November 27, 2017 at 7:16 pm

    Unfortunately that requires 60 votes in the senate, and the Ds won’t let it happen. This law is terrible, it strangles the economy, and does no good at all. But until Congress repeals it, or a court strikes it down (unlikely), it is the law.

“inefficiency” in Sen Warren’s written statue.. 2 Heads of CFPB seems very “inefficient” and a firing offense. Will DoJ WH CFPB lawyers notice?

    Milhouse in reply to mathewsjw. | November 27, 2017 at 7:41 pm

    There is only one head, and by the plain meaning of the statute it’s English. Still waiting for Kelly to decide. It’s been 3 hours since the hearing started. Has anyone heard anything?

The Dodd-Frank Act states that the Deputy becomes acting director in the absence or unavailability of the director. The director is neither absent nor unavailable. He has resigned. There is no contingency in the Dodd-Frank bill that addresses a resignation. But there is case law that affects this instance.

“The second argument in favor of the President’s appointment authority stems from comparing the language of Dodd-Frank, which provides for the deputy director to fill the role of acting director in case of “the absence or unavailability of the Director,” 12 U.S.C. § 5491(b)(5) (emphasis added), with the language of the FVRA, which applies when an officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office,” 5 U.S.C. § 3345(a).

Because it is so new, courts have had little opportunity to interpret the succession provision in Dodd-Frank. But, in interpreting the FVRA, courts have differentiated between temporary absences that occur due to disability or sickness, and permanent vacancies in cases “when there has been a death or resignation, that is, when the vacancy will be permanent unless a successor is appointed.” United States v. Lucido, 373 F. Supp. 1142, 1149 (E.D. Mich. 1974).

Based on this distinction, supporters of a presidential interim appointment should be able to argue that the provision in Dodd-Frank that places the deputy director in the position of acting director in cases of “absence or unavailability of the Director,” only applies to temporary vacancies, as in the case of extended travel or sickness; while the FVRA provision that applies to an officer who “dies, resigns, or is otherwise unable to perform the functions and duties of the office” applies to vacancies that are permanent until appointment of a successor.”

English has no case to say she is designated to run the agency. Based on US v Lucido, Trump has all the case law he needs to win the case in court.

I don’t think English even showed up to work today. How is that for confidence?

    Milhouse in reply to mishka. | November 27, 2017 at 9:59 pm

    The director is neither absent nor unavailable. He has resigned.

    BS. Even OLC accepts that the director is unavailable. You clearly haven’t read the OLC opinion, or the McLeod and Gupta memos, and therefore have no right to an opinion on the matter.

I had no clue what the CFPB did. I do now. It needs to be eliminated! Killing it looks like a huge boast for small business. It looks like a rich corporate welfare system not a consumer protection agency.

What a waste of money for this pet project.

    Milhouse in reply to MarkSmith. | November 27, 2017 at 10:02 pm

    Yes, its function is to stifle the economy and hurt people. The whole Dodd-Frank Act did more damage to the USA than al-Qaeda did.

Ok, take a deep breath. Some straight facts.

– The position of the Director of the CFPB is currently vacant.
– The Chief of Staff of the CFPB (Deputy Director) claims to be the Acting Director under 12 USC5491.
– Trump has assigned an Interim Director according to his authority and as per the Federal Vacancies Reform Act.

Now it gets fuzzy.

– The Interim Director takes the position of Director of the CFPB on a temporary basis, not to exceed (if I remember right) 365 days, or 180 if he’s going to get transferred there for a full 5 year term.
– At this point in time, the position of Director is *not* ‘absent or unavailable’ and Chief of Staff English has to scoot off the big chair and go back to her old office, having been ‘Acting’ for a few hours/days, and most probably able to get a single pay period at the higher salary.

That about right? Because 12 USC5491 does not override the FVRA, it simply sets up a chain of inheritance for what to do when the big chair is empty, and since that chair now has Mick in it, she’s back to her old job.

    Gremlin1974 in reply to georgfelis. | November 27, 2017 at 9:18 pm


    Milhouse in reply to georgfelis. | November 27, 2017 at 10:04 pm

    At this point in time, the position of Director is *not* ‘absent or unavailable’

    Even Trump’s own OLC says that is incorrect. The director is legally “unavailable” due to having resigned.

      To pick nits here, the *position* of Director is temporarily filled by the interim assignment of Mick to the position. The former director is unavailable, because he resigned. Since there is now an Interim Director, assigned by the President, Ms. English can no longer claim the title of ‘Acting’ and has to go back to her former position. (However, in most agencies I’m aware of, certain elements of the position such as custom chairs or agency-logo coasters *might* migrate to other offices in the building)

Oh My! Wow, the more I read about this, the more I see the gravy train crashing for the Dems.:

“Melissa Heist, the associate inspector general of the Federal Reserve System, reported on July 31, 2015, that the CFPB renovation would officially cost taxpayers $285.32 per square foot, a price tag reserved only for the most luxurious “Class A” commercial office buildings.”

If Leandra English was smart, she would duck and cover because this is going to be a huge corruption scandal and I think Warren is going down with it.

I guess Hilary got all her money and is on the run. The pop corn is popping. Yea Ha.

You need to read section 5 (b) of 12 USC 5491. It refers to the “absence or unavailability” of the director. Not the resignation or vacancy of the office. That’s where US v Lucido and the FVRA takes precedence. Trump could let English run the Agency, OR he could appoint an interim director. IT’S HIS CALL. English can’t unilaterally make that decision.

    Milhouse in reply to mishka. | November 27, 2017 at 11:01 pm

    Read the damned OLC opinion. Did you? If you haven’t read both it and Gupta’s memo then you’re not entitled to an opinion. And I don’t think you can have read it, because you seem completely unaware that it admits that “unavailability” does include resignation.

    While the question is not free from doubt, we believe that the provision’s reference to “unavailability” is best read to refer both to a temporary unavailability (such as the Director’s recusal from a particular matter) and to the Director’s being unavailable because of a resignation or other vacancy in office. See Acting Attorney General, 31 Op. OLC at 209 n.1 (referring to officials “who have died, resigned, or otherwise become unavailable”)(emphasis added); Designation of Acting Solicitor of Labor, 26 Op. OLC 211, 214 (2002) (describing provisions of the Vacancy Reform Act as contemplating “that a ‘vacancy’ occurs when the occupant dies or resigns or is otherwise unavailable.”)(emphasis added). Cf TCF Film Corp. v. Gourley, 240 F.2d 711, 714 (3d Cir. 1957)(observing, for purposes of law-of-the-case doctrine, that a judge who dies or resigns from the court…obviously is no longer available”)(footnote omitted).

      mishka in reply to Milhouse. | November 28, 2017 at 12:23 am

      US v Lucido decided that “absence” means that someone will be returning to a position or job. Due to ailment, vacation, etc… This situation meets none of those descriptions. It’s a vacancy, and the FVRA controls vacancies. English will lose her Federal lawsuit. Lucido is precedent, not merely and opinion. The DOJ OLC opinion is seconded by the chief counsel of the CFPB. The counsel who supplies legal opinions that the CFPB relies on. Ignore their opinions at your own risk.

        Milhouse in reply to mishka. | November 28, 2017 at 12:31 am

        How many times do you have to be told that the relevant term is not “absence” but “unavailability”? Even OLC admits that includes vacancies, so how can you claim it doesn’t?

It just keeps getting more interesting. There was this previous fight with Mulvaney and the Office of Government Ethics Director Walter Shaub Jr.. Shaub won the battle but lost the war and resigned.

Someone need to make a nice web diagram of all the stuff going on, it is massive.

No matter how this end, the CFPB has been cut off at the knees. One dragon has been slayed today and I think Cordray saw it coming. Just waiting for all the dirt to come out and it is going to be better than the $640 toilet seat.

    regulus arcturus in reply to MarkSmith. | November 27, 2017 at 9:38 pm

    More here –

    RUMBLINGS: Elizabeth Warren Faces ‘Political Destruction’ Amid Rumors CFPB Engaged In Multi-Billion Dollar ‘Scheme’

      Gateway Pundit?! Oh, it’s the same maroon who thinks the Vacancy Reform Act of 1988 “supersedes all statutes”. It takes someone that stupid to cite Jim Hoft’s lie sheet as evidence of anything.

        MarkSmith in reply to Milhouse. | November 28, 2017 at 11:03 am

        Milhouse said: “Gateway Pundit?!…. ”

        Ok, I don’t usually go to Gateway Pundit but I did because you have such issue with them. On the link site there was a great video of The plaintiff’s attorney Gupta from Gupta Wessler with CNBC. I recommend you watch it.

        I thought CNBC would be a puff piece, but it was actually a good interview. Gupta is a total idiot and now that I know they were part of the team that lobbied for the CFPB, they should be taken to jail over this too.

        I want to yell “Busted” after reading about the CFPB in the WSJ and on these sites.

        This could be a win for the little guy if they kill the CFPB. They need to get Pigford next. I recommend they revisit the Keaton 5 too.

If you have not seen this, check out his briefing! It rocks!

Love this quote:

“Only one person who today showed up at work claiming to be director.” “She wasn’t here.” “In the ordinary world, if you don’t call, you don’t show, you don’t have a job the next day, but I’m not sure how it works here.”

Hey maybe the Dems with set the standard for abuse:

Rep. Sean Duffy, R-Wis., wanted to ensure President Obama knows that “Army Veteran and CFPB employee Angela Martin recounted an environment of racism and sexism at the CFPB: ‘…women were seen ‘crying in their offices after suffering from abuse.’

“In fact, she claimed some employees have been clinically diagnosed with Post Traumatic Stress Disorder stemming from the hostile work environment.

This place is a disaster!

Some top shelf trolling in that briefing hahahahahahahahhahaha 🙂

Yup, elections sure do have consequences hahahahahahahhahahahahahhahahhaahaha

Btw, any word on how the hearing went yesterday?

The problem, in a nutshell, is that the Dodd/Frank legislation setting up CFPB tried to make it, effectively, a 4th branch of government: unaccountable to the President, to Congress or to the Judiciary.

But, of course, there’s that sticky problem where we still have a Constitution. And it is crystal clear.

“Article II, Section 1, 1: The executive Power shall be vested in a President of the United States of America.”

Can a federal law supercede the Constitution? Of course not. Not ever.

POTUS can appoint or dismiss several layers of top brass at EVERY federal agency.

Ditto for the section in Dodd/Frank that tries to prohibit future Congresses from repealing the law. Blatantly Un-Constitutional. No Congress can set any limit on any future Congress, and every law enacted by Congress can simply be repealed, or modified, at will by any future Congress.

Oh, and the bit about CFPB getting funded direct from the federal reserve to get around the Constitution granting Congress power of the purse strings? Can’t imagine that would survive judicial review.

Speaking of which, does anyone imagine the federal courts would uphold the CFPB being above Judicial review? LOL!! Federal Judges act like they are our Dictators now, think they’ll acknowledge a law that makes a bureaucracy above judicial review? No chance.

A Federal District Court Judge has already ruled that CFPB’s leadership structure is Un-Constitutional.

Thanks for the update. So what is Milhouses take on the response? It looks pretty strong to me that it should be ruled in favor of the President and if not, the SC should look pretty good.

I think the Appeals case makes a good point that the structure of the CFPB is unconstitutional and could restrict the liberties since it is not a multi-member board.

The multi-member structure reduces the risk of arbitrary
decision making and abuse of power, and thereby helps protect individual liberty.

This is exactly what Cordrary did, made English Acting Director without oversight.

I think this is going to tip the full appeals which in already in favor of the PHH case.

Here is the link to the opinion:$file/15-1177-1640101.pdf

Rumor has it that English just lost her case……I think I smell crow cooking.

Court decision leaves White House’s Mulvaney in place as acting head of CFPB