WASHINGTON–During a hearing here over who should be the rightful director of the Consumer Financial Protection Bureau, attorneys for both sides continued to argue over which law should take precedent.
Attorneys for the claimant–Leandra English, the deputy director of the CFPB–said the Dodd Frank Act is clear that English should have been elevated to the director’s post once there was a vacancy. But attorneys for the Trump Administration again argued that the president has the authority to name someone to the position and that the provisions in the law creating the agency cannot stop the president from replacing an acting director either “at will” or “for cause.”
At issue is the leadership of acting director Mick Mulvaney, who is being challenged by English. In arguments before the U.S. Court of Appeals for the D.C. Circuit in Washington, English’s attorney, Deepak Gupta, argued that a 2017 appeals court’s decision in a different case, PHH v. Richard Cordray (the CFPB’s former director), the court recognized that the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 intended to preserve the independence of the agency from presidential will.
‘Quite Strange’
“It would be quite strange if the court allowed this independent agency to be taken over by the president” in light of that decision, Gupta told the court.
As a result, English is arguing that she should be director of the agency after Cordray resigned from the job, as the law is clear that the deputy director is to be elevated.
As it has in previous hearings, Trump Administration attorneys cited the Federal Vacancies Reform Act of 1998 (FVRA), which gives the president the power to appoint replacements for federal leadership vacancies, as all the authority needed to name Mulvaney to the position. The Department of Justice said the FVRA supersedes the Dodd-Frank statute’s provisions stating that the director can only be removed by the president “for cause,” and that the “for cause” provision does not transfer to the acting director.
In his rebuttal, Gupta said Congress passed the law with the specific intent of not having a CFPB director who served “indefinitely” at the pleasure of the president.
The court has not published any timetable for a ruling in the matter.
In testimony before Congress last week, Mulvaney, who is also director of the Office of Management and Budget, said he will have to leave the position by June 22 unless the president nominates a successor.