Adam J. Levitin of Georgetown, Patricia A. McCoy of Boston College Law School, Kathleen C. Engel of Suffolk, and Dalié Jiménez of California-Irvine, Connecticut School of Law; and Harvard's Center on the Legal Profession have authored Brief of Amici Curiae Consumer Financial Regulation Scholars in Support of Plaintiff-Appellant Leandra English, English v. Trump, No. 18-5007 (D.C. Cir.). Here's the abstract:
In November 2017, a successorship controversy ensued over the rightful Acting Director of the Consumer Financial Protection Bureau (CFPB or the Bureau) following the resignation of the Bureau’s first Senate-confirmed Director. President Donald Trump appointed the Director of Office of Management and Budget (OMB), Appellee John Michael Mulvaney, as Acting CFPB Director, despite the Dodd-Frank Act’s command that the Deputy Director of the CFPB “shall . . . serve as acting Director in the absence or unavailability of the Director.” 12 U.S.C. § 5491(b)(5)(B). The White House countered that the Federal Vacancies Reform Act of 1998 (FVRA), 5 U.S.C. § 3345(a), authorized Mulvaney’s appointment.
In this amicus brief, Amici Curiae Consumer Financial Regulation Scholars asserted that upon the Director’s resignation, the CFPB’s Deputy Director, Leandra English, became Acting Director and was entitled to serve in that role until a new Director was confirmed by the Senate or recess appointed. Amici contend that Deputy Director English’s claim is correct because the Dodd-Frank Act is the only statute that governs this succession dispute. In Dodd-Frank, Congress expressly decreed a mandatory line of succession for an Acting CFPB Director, stating that the Deputy Director “shall” serve as the Acting Director in the event of the Director’s vacancy. Congress enacted this provision after considering and rejecting the FVRA during the drafting of the Dodd-Frank Act. Further, Congress’s choice of this succession provision is intrinsic to the CFPB’s design as an agency with unique independence from policy control by the White House. The appointment of any White House official, but particularly the OMB Director, as Acting CFPB Director is repugnant to the statutory CFPB independence that Congress ordained. Nor does the FVRA apply to this case because it yields to subsequently enacted statutes with express mandatory provisions for filling vacancies at federal agencies. This is apparent from the text of the FVRA, from the FVRA’s legislative history, and from the basic constitutional principle that an earlier Congress cannot bind a subsequent Congress.
(Disclosure: I joined in the brief). ther amicus briefs in support of Ms. English at the Consumer Finance Monitor Blog.
