Ignore the Chatter, Mick Mulvaney Is the Acting Head of CFPB
Last week, Judge Timothy Kelly, U.S. District Court for the District of Columbia, ruled that Mick Mulvaney, not Leandra English, is the Acting Director of the Consumer Financial Protection Bureau (“CFPB”).
Ms. English, whom outgoing director Richard Cordray abruptly appointed as deputy director during Thanksgiving weekend, sued President Trump on Monday morning. The deputy director position had been open since 2015; Cordray chose to keep it unfilled until last Friday. Ms. English retained a private-sector plaintiff’s attorney to represent her, partially because the CFPB’s general counsel and the Justice Department agreed with President Trump. Ms. English has not disclosed whether the government or she herself is paying her legal fees, if any.
Judge Kelly basically said that if President Trump had not selected an individual who met the requirements of the Federal Vacancies Reform Act of 1998 (“FVRA”) to serve as the CFPB’s acting director, then Ms. English would be the deputy director and the acting director. But because President Trump selected Mulvaney, who meets the FVRA’s requirements, Mulvaney therefore is acting director and Ms. English remains deputy director.
Furthermore, the FVRA states specific exceptions where it does not apply (e.g. “any member of the Surface Transportation Board”); the CFPB is not one of them. Congress could have amended the FVRA to clearly exempt the CFPB, but it did not. Alternatively, Congress could have specifically stated in Dodd-Frank’s statutory text that the FVRA did not apply to the CFPB, but chose not to do so. Thus, Judge Kelly followed the law and properly ruled that the FVRA applies to Dodd-Frank because neither statute directly or explicitly (i.e. “expressly”) prohibits it, and therefore President Trump properly exercised his authority to name Mulvaney as Acting CFPB Director.
The three most commonly stated arguments supporting Ms. English’s desire to be CFPB acting director appear to be (1) Congress passed Dodd-Frank after it passed the FVRA and therefore the FVRA does not count; (2) Mick Mulvaney and President Trump both have said uncomplimentary things about the CFPB; and (3) Mulvaney cannot serve as acting director because of Dodd-Frank’s legislative intent. All three are unpersuasive.
The fact that Dodd-Frank became law twelve years after the FVRA is irrelevant to the question of whether the FVRA applies to the CFPB. For example, the FVRA applies to the Department of Homeland Security, which Congress created in 2002. The important thing is that neither Dodd-Frank’s nor the FVRA’s statutory text specifically state that the FVRA does not apply to Dodd-Frank or the CFPB.
President Trump’s and Director Mulvaney’s statements about the CFPB, whether positive or negative, also are legally irrelevant to the legal question of whether President Trump had the right to choose his own CFPB acting director. It is constitutionally dangerous for the federal courts to intrude in this manner on the President’s constitutional appointment power. Unlike Goldilocks, the courts do not have the ability to decide how much criticism or praise is too much, too little, or just right; the potential questions are infinite. For example, how many complimentary or critical statements may a nominee make before deemed unacceptable?
The meaning of Dodd-Frank, the FVRA, or any other statute comes from the statute’s actual text, not its legislative history. It is disconcerting that supporters of Mulvaney’s position and supporters of English’s position both cited legislative history in their respective arguments.
Legislative history is not the law; the actual law is the law. Among other flaws, legislative history often contains materials that staff or lobbyists inserted, often without the legislators’ knowledge, and does not include verbal discussions.
Depending on legislative history inevitably shortchanges one or both houses of Congress and offends the Constitution, particularly the Presentment Clause. It is highly unlikely that a single “legislative intent” actually exists amongst 535 different legislators, each with his or her own intentions (or perhaps none at all) and each representing different geographical regions.
Congress voted on and the President signed Dodd-Frank’s and the FVRA’s statutory text, not their legislative histories. The legislature’s “intent” is expressed solely in the statutes’ words and plain meaning.
As Justice Scalia put it in Conroy v. Aniskoff and Wisconsin Public Intervenor v. Mortier, “The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislatures … we are a Government of laws, not of committee reports.”
Perhaps one silver lining to come out of this saga is that more Americans are now more aware of how powerful and pervasive administrative agencies can be.
