Some legal questions are tough. The question of who should lawfully be considered the acting director of the Consumer Financial Protection Bureau is not one of them. President Trump unquestionably has the power to name Mick Mulvaney (his Senate-confirmed budget director) to the position, and he has done so. The lawsuit seeking to block this appointment, filed by the CFPB’s deputy director Leandra English — who hopes to take the job herself — is frivolous and offensive.
The CFPB is an unconstitutional monstrosity that ought to be abolished. Indeed, the current tiff is but a symptom of the underlying disease: The political progressives who created the CFPB sought to make it an “independent” agency, beyond political accountability and inter-branch checks and balances. It would be a boon if the dust-up over the acting leadership of the agency would spur a case that could invalidate the entire enterprise.
That is unlikely, though, so let’s stick to the narrow, easy question before us.
The CFPB, brainchild of former Harvard law professor (now senator) Elizabeth Warren, was rammed through by the Democrat-dominated Congress in 2010. Under the statute creating the CFPB (section 5491 of Title 12, U.S. Code), the director is appointed by the president with the advice and consent of the Senate, and the deputy is appointed by the director.
There was partisan infighting over leadership of the agency. Finally, in January 2012, President Obama unconstitutionally installed Cordray as a “recess appointment” despite the fact that the Senate was not actually in recess. Cordray was nevertheless confirmed in 2013, and he failed to fill the deputy position after it became vacant in August 2015. The acting deputy was David Silberman. Leandra English was Cordray’s chief of staff. On his last day in office, Cordray abruptly appointed English as deputy.