Can Trump Appoint Mulvaney to Lead the CFPB Temporarily? Adam Levitin at Credit Slips & David Dayen at The Intercept Say No

by Jeff Sovern

Adam's piece is here while Dayen's is titled THERE’S A HITCH IN TRUMP’S PLAN TO STICK MICK MULVANEY ON THE CFPB: IT’S ILLEGAL.  Adam's argument is based on the legislative history and makes a lot of sense, though I suppose a strict textualist would not be persuaded by the use of legislative history. But the text of the statute also supports his interpretation. Under his approach, the deputy director would become acting director, as provided in § 1011(b)(5)(B) of the Dodd-Frank Act, which says that the deputy director shall "serve as acting Director in the absence or unavailability of the Director." Dayen, who refers to Adam's views on the matter, expresses concern that as Cordray has not appointed a deputy director but only named an acting deputy director, David Silberman, Trump could appoint a deputy director himself. I am skeptical of that claim as the Dodd-Frank Act, § 1011(b)(5)(A), says that the deputy director "shall–(A) be appointed by the Director" and obviously the president is not the director of the CFPB.  Dayen also discusses what might happen if Trump appointed Mulvaney or someone else anyway. I had previously expressed my opinion in an August 4 article in Bloomberg, Potential Successor to CFPB’s Cordray Unclear Under Dodd-Frank: “I’m not an expert on administrative law by any means, but surely an argument can be made that a director who resigns is both ‘absent’ and ‘unavailable,’ which means that the deputy director would automatically become acting director in light of the statutory text that the deputy director ‘shall serve as acting Director in the absence or unavailability of the Director.’" Adam links to a contrary view, based on the Federal Vacancies Act.

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