Gaming out the Trump v. CFPB Conflict

November 24th, 2017

As expected, Richard Cordray has resigned as the Director of the CFPB. Shortly before he ended his tenure, he appointed his chief of staff, Leandra English, as the CFPB’s deputy director. Politico reports, without any qualifications that upon Cordray’s departure, English becomes the acting head of the agency, thus preventing President Trump from tapping Mick Mulvaney as acting head under the Federal Vacancies Reform Act. I will put aside for now how to reconcile the succession provisions of Dodd Frank (which created the CFPB) and the general succession provisions under the Vacancies Reform Act. (See this post for my analysis of the latter statute).

My inquiry is far more discrete: how to handle this conflict? English insists she is the acting head of the agency. So does Mulvaney. Two people can’t occupy the same position. So what should the Trump administration do?

One option would be for Trump to simply fire English as acting director. (I will skip for now the question of whether the “for cause” provision of the statute is constitutional). But firing her as acting director so would amount to a recognition that she in fact holds the position, a fact that could haunt the executive branch if the case goes to litigation. I do not believe that Trump could fire English as the deputy director. Thus Mulvaney would have to fire English as his putative deputy. Obviously English would not accept the termination, as she claims to be acting director, answerable only to the President, and removable only for cause. Thus there is a Catch-22.

This could get ugly, very quickly. Mulvaney could order English to be denied entry to the building, and to have her email and phone accounts disabled. That would make a memorable public scene on the steps of the CFPB, blocks away from the White House. Would the CFPB staff even obey those orders? Departmentalism in action.

Ultimately, English will sue for her lost salary (like poor Mr. Humphrey), and the D.C. Circuit can sort out this sordid separation of powers squabble.

In hindsight, this meme which I created almost one year ago to the day did not come to fruition: