Brief of Amici Curiae Consumer Financial Regulation Scholars in Support of Plaintiff-Appellant Leandra English, English v. Trump, No. 18-5007 (D.C. Cir.)

46 Pages Posted: 12 Feb 2018  

Adam J. Levitin

Georgetown University Law Center

Patricia A. McCoy

Boston College Law School

Kathleen C. Engel

Suffolk University Law School

Dalié Jiménez

University of California, Irvine School of Law; University of Connecticut School of Law; Harvard Law School - Center on the Legal Profession

Date Written: February 6, 2018

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.

Keywords: Consumer Financial Protection Bureau, succession, agency independence

JEL Classification: K22, K23, K42, D72, G01, G18, G28

Suggested Citation

Levitin, Adam J. and McCoy, Patricia A. and Engel, Kathleen C. and Jiménez, Dalié, Brief of Amici Curiae Consumer Financial Regulation Scholars in Support of Plaintiff-Appellant Leandra English, English v. Trump, No. 18-5007 (D.C. Cir.) (February 6, 2018). Available at SSRN: https://ssrn.com/abstract=3119202 or http://dx.doi.org/10.2139/ssrn.3119202

Adam J. Levitin

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

Patricia Ann McCoy (Contact Author)

Boston College Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States

Kathleen Engel

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States
617-994-6831 (Phone)

HOME PAGE: http://www.law.suffolk.edu/directories/administrator.cfm?InstructorID=1111

Dalié Jiménez

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92697-1000
United States

HOME PAGE: http://www.law.uci.edu/faculty/full-time/jimenez/

University of Connecticut School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States
860-570-5114 (Phone)

HOME PAGE: http://www.dalie.org

Harvard Law School - Center on the Legal Profession ( email )

1585 Massachusetts Avenue
Wasserstein Hall, Suite 5018
Cambridge, MA 02138
United States

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