Democrats and the rule of law and constitutional separation of powers. You just can’t make this shit up.
Richard Cordray’s Political Stunt
Democrats pretend that the Consumer Financial Protection Bureau is its own branch of government.
The Editorial BoardNov. 26, 2017 10:17 p.m. ET
The Trump Administration ducked a fight with Richard Cordray by letting him quit rather than fire him for cause. So much for conciliation. The Consumer Financial Protection Bureau director on Friday provoked a bureaucratic brawl, and a fight over proper legal authority, by appointing his own replacement.
When announcing his resignation earlier this month, Mr. Cordray left ambiguous the date of his departure. Many didn’t expect him to leave until next week, and his exit Friday appeared to blindside the White House. President Trump quickly invoked the Federal Vacancies Reform Act (commonly known as the Vacancies Act) to appoint Office of Management and Budget director Mick Mulvaney as acting director of the bureau. The law allows the President to temporarily fill a vacancy at an executive agency with a government official who has been confirmed by the Senate.
But on his way out Mr. Cordray appointed his chief of staff Leandra English as the bureau’s deputy director, a position that has been vacant for two years. Dodd-Frank lets the bureau’s deputy director serve as the acting director “in the absence or unavailability of the Director.”
Ergo, Mr. Cordray claims Ms. English is the new acting director. “If you look at the CFPB language it is very specific and it was designed to protect an agency that we knew would be under a lot of pressure,” said Barney Frank, who was hauled out of retirement over the weekend as a Dodd-Frank author. “Everything was structured for its independence.”
Not so fast. Merely because Mr. Frank wishes it were so does not mean Congress can supersede other federal law—in particular the Vacancies Act. As a memo from the Justice Department Office of Legal Counsel (OLC) explains, 40 other office-specific statutes provide alternatives to the Vacancies Act.
Even when it is not the “exclusive means for filling a vacancy, the [Vacancies Act] remains an available option” for a President to fill an opening, says the OLC memo. And “the President’s designation necessarily controls” unless a statute includes language expressly stating otherwise. Dodd-Frank does not.
OLC is the government’s main legal authority on executive power and it has consistently supported this interpretation, including in 2003 with regard to the acting director of OMB and in 2007 with the acting Attorney General. This interpretation also adheres to the only federal circuit court opinion on the subject, which was issued by an Obama appointee on the Ninth Circuit Court of Appeals last year.
The Ninth Circuit upheld Lafe Solomon’s appointment under the Vacancies Act as general counsel of the National Labor Relations Board, noting that neither the Vacancies Act nor the National Labor Relations Act “is the exclusive means of appointing an Acting general counsel” and that “the President is permitted to elect between these two statutory alternatives.”
In other words, Mr. Trump is acting well within his legal authority. If Ms. English resists, it would be cause for immediate dismissal. Dodd-Frank lets the President fire the director for cause, and resisting a President backed by the legal arguments of the Justice Department would qualify. A presidential order supported by Justice is presumed to be legitimate unless it is overturned by an Article III court.
This fiasco underscores that the CFPB is a rogue agency whose structure is an affront to the Constitution’s separation of powers. A panel of the D.C. Circuit Court of Appeals ruled in PHH Corp. v. CFPB that the “independence” Mr. Frank so prizes is unconstitutional and that the bureau’s director must be subject to presidential authority. The full circuit, which former Democratic Senate leader Harry Reid packed with Obama nominees in 2013, vacated the decision while it considers the case en banc.
It’s possible that Mr. Cordray planned all this with the hope of creating an incident Monday when business opens at the CFPB. And, lo, late Sunday evening Ms. English sued the Trump Administration claiming Mr. Mulvaney’s appointment is illegal. On Monday morning she could refuse to vacate what she claims is her office and will have to be escorted out. Mr. Cordray and Democrats will portray her and Mr. Cordray as heroes of “the resistance,” the better to raise his name recognition as he runs for Governor of Ohio next year.
The Trump Administration is destined to prevail as a matter of law. But the episode shows that hostility to Mr. Trump is causing his opponents to violate the rule of law themselves. Democrats created an executive-branch agency insulated from Congressional appropriations and presidential control, and now they claim to be able to run it like a branch of government unto itself with a self-sustaining directorship. This is a perversion of constitutional government that the President is right to resist and the courts should reject.
Richard Cordray’s Political Stunt
Democrats pretend that the Consumer Financial Protection Bureau is its own branch of government.
The Editorial BoardNov. 26, 2017 10:17 p.m. ET
The Trump Administration ducked a fight with Richard Cordray by letting him quit rather than fire him for cause. So much for conciliation. The Consumer Financial Protection Bureau director on Friday provoked a bureaucratic brawl, and a fight over proper legal authority, by appointing his own replacement.
When announcing his resignation earlier this month, Mr. Cordray left ambiguous the date of his departure. Many didn’t expect him to leave until next week, and his exit Friday appeared to blindside the White House. President Trump quickly invoked the Federal Vacancies Reform Act (commonly known as the Vacancies Act) to appoint Office of Management and Budget director Mick Mulvaney as acting director of the bureau. The law allows the President to temporarily fill a vacancy at an executive agency with a government official who has been confirmed by the Senate.
But on his way out Mr. Cordray appointed his chief of staff Leandra English as the bureau’s deputy director, a position that has been vacant for two years. Dodd-Frank lets the bureau’s deputy director serve as the acting director “in the absence or unavailability of the Director.”
Ergo, Mr. Cordray claims Ms. English is the new acting director. “If you look at the CFPB language it is very specific and it was designed to protect an agency that we knew would be under a lot of pressure,” said Barney Frank, who was hauled out of retirement over the weekend as a Dodd-Frank author. “Everything was structured for its independence.”
Not so fast. Merely because Mr. Frank wishes it were so does not mean Congress can supersede other federal law—in particular the Vacancies Act. As a memo from the Justice Department Office of Legal Counsel (OLC) explains, 40 other office-specific statutes provide alternatives to the Vacancies Act.
Even when it is not the “exclusive means for filling a vacancy, the [Vacancies Act] remains an available option” for a President to fill an opening, says the OLC memo. And “the President’s designation necessarily controls” unless a statute includes language expressly stating otherwise. Dodd-Frank does not.
OLC is the government’s main legal authority on executive power and it has consistently supported this interpretation, including in 2003 with regard to the acting director of OMB and in 2007 with the acting Attorney General. This interpretation also adheres to the only federal circuit court opinion on the subject, which was issued by an Obama appointee on the Ninth Circuit Court of Appeals last year.
The Ninth Circuit upheld Lafe Solomon’s appointment under the Vacancies Act as general counsel of the National Labor Relations Board, noting that neither the Vacancies Act nor the National Labor Relations Act “is the exclusive means of appointing an Acting general counsel” and that “the President is permitted to elect between these two statutory alternatives.”
In other words, Mr. Trump is acting well within his legal authority. If Ms. English resists, it would be cause for immediate dismissal. Dodd-Frank lets the President fire the director for cause, and resisting a President backed by the legal arguments of the Justice Department would qualify. A presidential order supported by Justice is presumed to be legitimate unless it is overturned by an Article III court.
This fiasco underscores that the CFPB is a rogue agency whose structure is an affront to the Constitution’s separation of powers. A panel of the D.C. Circuit Court of Appeals ruled in PHH Corp. v. CFPB that the “independence” Mr. Frank so prizes is unconstitutional and that the bureau’s director must be subject to presidential authority. The full circuit, which former Democratic Senate leader Harry Reid packed with Obama nominees in 2013, vacated the decision while it considers the case en banc.
It’s possible that Mr. Cordray planned all this with the hope of creating an incident Monday when business opens at the CFPB. And, lo, late Sunday evening Ms. English sued the Trump Administration claiming Mr. Mulvaney’s appointment is illegal. On Monday morning she could refuse to vacate what she claims is her office and will have to be escorted out. Mr. Cordray and Democrats will portray her and Mr. Cordray as heroes of “the resistance,” the better to raise his name recognition as he runs for Governor of Ohio next year.
The Trump Administration is destined to prevail as a matter of law. But the episode shows that hostility to Mr. Trump is causing his opponents to violate the rule of law themselves. Democrats created an executive-branch agency insulated from Congressional appropriations and presidential control, and now they claim to be able to run it like a branch of government unto itself with a self-sustaining directorship. This is a perversion of constitutional government that the President is right to resist and the courts should reject.
