TL;DR: The departing director appointed a deputy director before he left. The law creating the agency says that person is the acting director until a new appointee is confirmed. Trump says that he picks someone else to be deputy director, and that person is now acting director (and cites a different law).
THERE CAN BE ONLY ONE!
But which one?
Which one wants to fuck over consumers more?
Trump’s pick, Mick Mulvaney, is a long-time critic of the agency.
As a congressman, Mulvaney called the agency a “joke” and talked about his desire to get rid of it. I don’t understand why you would want to put someone who hates a government agency in charge of that agency.
You do that if you want to damage that agency, or the government as a whole. Either of which suits Trump’s goals.
[ul]
[li]Make the agency unworkable, either by gutting its funding or putting a hostile crony in charge (or both);[/li][li]Shout from the rooftops that the agency is unworkable and its functions need to be privatized;[/li][li]Profit!!![/li][/ul]
The law creating the agency will prevail. I have no doubt it will take a court challenge.
Trump will lose.
It just means he has to replace the director of the agency with the consent of Congress, right? You know, the body that his party controls?
If Cordray’s pick wins in court, why can’t Trump just fire him/her? (I can’t believe that article didn’t give that person’s name. Or did I miss it?)
He can, but he probably has to take the additional step of getting the senate to approve his replacement appointment first. Actually…does the President even have to replace appointed figures, or can he just fire whoever?
As much as I think the mission of the Bureau is important, I think th creation of the Bureau is rife with constitutionally suspect aspects. The idea that the President doesn’t have the authority to name an acting director of an Executive Branch agency probably tops the list, though.
He can, but only with the approval of the Congress.
This article, though from a source I haven’t heard of, goes into great detail about this issue. Apparently, it is still somewhat disputed, but Congress does appear to have the ability to force the president to ask for their consent for appointing a director. Similarly, the President cannot fire an appointed executive branch official if the legislation creating the branch forbids it, and the official isn’t directly working for the President in the white house.
So yeah, it actually does appear that the agency will prevail in court and an injunction will come down putting the acting director in charge of the agency until Congress acts on the matter.
I can’t talk about the Constitutionality - since in reality, the Constitution is a vague document that can be reinterpreted a thousand ways - but there are strong practical reasons for having independent agencies that the Executive branch cannot tamper with on a whim. The FBI, among other things, is supposed to be one of those agencies…
Congress or just the Senate? Will that be a problem?
I think you’re referring to confirmation of a new permanent Director?
In any case, the Vacancies Act directs that if an officer, subject to Senate confirmation, in an agency resigns or dies, the principal deputy to that officer becomes acting, unless the President himself decides to appoint another Senator confirmed officer to serve in an acting capacity until a permanent replacement can be installed. The Vacancies Act, so far as I can tell, provides an open-and-shut case that the White House is correct on this. I have more to say on the constitutionality of this whole mess, but I will save that for another day.
But let’s say that most of you prevail in that an agency head gets to determine his own successor.
So let’s say Trump appoints some asshole like Roy Moore to be the next Director. Dems can’t filibuster the appointment, so he gets a five year term.
Then let’s say Bernie Sanders wins the 2020 elections, but the Senate remains in Republican hands. You think Roy Moore and not President Sanders should determine who gets the next acting Director job? And let’s say the Senate remains in Republican hands, so it never considers Sanders’ nomination of a nice liberal successor.
You all are saying that legally, the agency shall lawfully remain in Roy Moore’s protege’s hands indefinitely, and President Sanders and the courts are powerless to do anything about it (until the Senate returns to Democratic hands, of course).
Do you think all agencies really ought to function like this? What specifically in this agency’s charter makes it different from, say, the CIA? Or can this tactic also be used to insure that CIA leadership remains in one party’s control despite the election of a new President?
I’d assume Senate. I looked at the text of the nuclear option changes to the senate rules to see if it would be something that could be filibustered, and the change to the rules made under Obama was: “the vote on cloture under rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote.” So it would seem it would be by just a majority vote.
Why would the Vacancies Act supersede the Dodd–Frank Wall Street Reform and Consumer Protection Act? I’ve read some about some senators stating the the Dodd-Frank Act was specifically written to made sure that a president couldn’t just install someone like Trump is trying to do. Would it make a difference if there was specific intent to insulate the position? (Note: I have no information on whether this is true or if it’s just post-hoc posturing)
On a different note, I think there needs to be legislation or it written into the rules that appointments must be acted on within specific time frames. This whole game of “We’re just not going to bring that person up for a vote” is a problem that both sides need to fix asap.
And on a related note, I’m in legal and have dealt with CFPB investigations. I’ve seen one in particular that was a pure fishing expedition and cost the company a significant amount of money to comply with the CFPB’s requests. I definitely think there needs to be changes made to protect against, umm, overzealous, investigations, but overall the agency does extremely important work and should be strengthened and improved instead of crippled.
The legislation chartering the CFPB, an act passed by Congress, trumps the Vacancies Act, another act passed by Congress. You should try to step back and remove your personal opinions from this matter, for better or worse, this is what the law says, and there is long lasting precedent that Congress has the power to do this.
Congress (both houses) can of course change it’s mind, and if it really wants to give Trump the power to control the CFPB, it can do so. Hell, it can make every position in the CFPB appoint-able by the President if that President’s name is Donald Trump, without Senate approval. It’s up to Congress.
Please quote me the precise section of Dodd-Frank that supercedes the Vacancies Act.
Then for bonus points, please comment on this quote from Watt v Alaska:
I don’t know the law involved, but Cordray’s action seems like a political gift to Trump. By highlighting the unusual nature of the agency’s governance, it potentially creates momentum for Congress to remake the agency and strip it of its independence.