Congressional Republicans File Amicus Brief Supporting President Trump in Fight over CFPB Appointment

Republican members of Congress filed an amicus brief supporting President Donald Trump and Acting Consumer Financial Protection Bureau (“CFPB”) Director Mick Mulvaney in a lawsuit challenging the President’s authority to appoint Mr. Mulvaney as acting head of the CFPB. The lawsuit was filed by CFPB Deputy Director Leandra English.

As previously covered, the dispute arose after former CFPB Director Richard Cordray left the agency and asserted Ms. English’s authority to serve as Acting Director until a permanent replacement was selected and confirmed by the Senate. President Trump then named Mr. Mulvaney as Acting Director, and Ms. English has since pursued legal action to overturn the appointment. Her challenge was rejected by the U.S. District Court for the District of Columbia and is now being heard by the D.C. Circuit Court of Appeals.

In the amicus brief, the Republican Congress members assert that President Trump appointed Mr. Mulvaney in a manner consistent with his authority under the Federal Vacancies Reform Act (“FVRA”). Ms. English argued that a Dodd-Frank provision supersedes the President’s FVRA authority, prohibits his appointment of Mr. Mulvaney, and allows the Deputy Director to serve as Acting Director until a new Director is confirmed by the Senate.

Lofchie Comment: There is, or at least there should be, a distinction between the question of whether Mick Mulvaney is the right person to head the CFPB and the question of whether there is anyone who believes it is good government, or in any way rational, to empower the departing heads of major U.S. government regulatory agencies to name their successors. If Congressional supporters of Ms. English think this is a good way to run a government, perhaps they should introduce legislation to amend the FVRA and so make it general practice. To do so would make plain that Ms. English’s position is nonsense and works only for the most short-term political advantage. Those who support it should be mindful that it will simply be used against them should Democrats win the next Presidential election.

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