Why would a President have to get the replacement confirmed by the Senate, before he fires someone?
He obviously doesn’t. The point you’re responding to is pure nonsense.
In fact, even a cursory glance at the statute reveals that the Director of the agency is supposed to be fired only for cause (like neglect of duty) but the Deputy Director has no such protection.
Trump would be totally within his power to fire the Deputy Director/acting Director for any reason whatsoever - or to coin a phrase, pull another Sally Yates.
And to be clear, Trump is going to come up with a terrible appointment for this office. But elections have consequences.
While we’ll know more tomorrow, the law will prevail for Dodd-Frank. Barney said so. 
We shall see what the courts say, but in the mean time, the General Counsel of the CFPB says that employees should consider the Trump pick of Mick Mulvaney to be their boss starting on Monday:
The General Counsel was not a Trump pick, in case you’re wondering. She has held the post since late 2015.
I think it’s worth clarifying that this is not what the law says. It says that the Deputy Director shall “serve as acting Director in the absence or unavailability of the Director.” One question that is central to this is whether “absence or unavailability of the Director” includes a vacancy in the office caused by resignation. The White House position that “absence” and “unavailability” does not include “vacancy” is consistent with previous positions by previous administrations. There are reasonable arguments on both sides (and this is the kind of fun obscure legal question that comes up in every administration) but I did want to note that this is not a dispute between to unambiguous statutes.
Part of the problem is that the press seems to be having a field day with this, and setting it up as a much bigger battle than it probably is. OMG!!! I show up to work on Monday and have no idea who my boss is!!!
On a practical level, it would be very confusing to be at the CFPB today. Also, I don’t think it’s terribly common to actually end up with two people claiming to be acting director. The way these issues tend to get litigated is by a subsequent challenge to some agency action claiming that acting official was without authority. See, e.g., Hooks v. Kitsap Tenant Support Services, Inc., 816 F. 3d 550 (9th Cir. 2016) (discussing President Obama’s ability to name the acting general counsel at the NLRB in the context of a challenge to an NLRB administrative complaint). The CFPB’s peculiar status (and Cordray’s obvious animosity towards the administration) makes this a more exciting dispute than usual.
While I personally totally agree with the issue you raised – to me the plain reading of “absence of unavailability” tends to mean “if the Director happens to be on vacation or home sick” not “if there is no Director” – the Department of Justice’s Office of Legal Counsel isn’t actually adopting this argument.
OLC is more or less conceding that the vague language might include a vacancy; however, based on a Ninth Circuit decision (I think from 2016?) which found that the President had discretion to determine whether he wished to follow the Vacancies Act procedures or a different procedure laid out specifically for the National Labor Relations Board. The text of the statute for the NLRB and CFPB are not identical, but I think the principle of the decision would apply exactly to this situation.
You’re right. I was thinking of the General Counsel’s memo. I’m not sure why the OLC seems to concede that “unavailability” includes “vacancy.” But you are correct that their argument is that the FVRA remains available to the President, even when it is not “exclusive.” (Which is the NLRB general counsel case).
Edit: The general counsel also makes the non-exclusive point. I just think she took a stronger position on the definition question, even if she ultimately suggested it was unnecessary to resolve.
IANAL, but doesn’t a more recently-passed law inherently nullify, modify, etc. an earlier law, to the extent that they disagree?
IOW, if the Vacancies Act, when passed, applied across the board, but a later law spelled out a different procedure for dealing with vacancies, expressly for the NLRB, I’d have thought that that would have the effect of the new procedure replacing the Vacancies Act for the NLRB, rather than creating an optional second procedure, unless the later law said it was doing exactly that.
I’d be interested in a quick summary of the Ninth Circuit’s reasoning, if one is available. 
The reasoning is fairly straightforward, I think:
-
The FVRA is “the exclusive means for temporarily authorizing an acting official” unless there is another statute the authorizes the President to appoint an acting official (the NLRB case) or one that “designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity” (the CFPB case).
-
The FVRA, by its own terms, specifically does not allow the President to use it to appoint certain officers, but none of those are relevant here. 5 U.S.C. 3349c.
-
The existence of a statutory provision designating an acting official only makes the FVRA non-exclusive, it does not make it inapplicable. The FVRA is only inapplicable to those vacancies specified in the statute.
-
Therefore, the FVRA “form[s] the exclusive means for filling a vacancy in an Executive agency office unless another statute expressly provides a means for filling such a vacancy. Because section 3(d) of the NLRA does so, neither the FVRA nor the NLRA is the exclusive means of appointing an Acting General Counsel of the NLRB. Thus, the President is permitted to elect between these two statutory alternatives to designate an Acting General Counsel.” (emphasis in original).
-
This is supported by the Senate history of the FVRA, which provides “even with respect to the specific positions in which temporary officers may serve under the specific statutes this bill retains, the [FVRA] would continue to provide an alternative procedure for temporarily occupying the office.”
So, if we applied the Hooks case to the CFPB issue (and ignoring the definition of unalienable), once the Director resigned, the President could have allowed the acting director to be determined by the terms of the Dodd-Frank Act or he could have used the FVRA. And, in fact, he chose the latter.
Thanks for the lucid explanation!
So basically, any subsequent statutes that “designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity” would be legislating within the framework created by the FVRA, would merely create an alternative means of filling a vacancy per the FVRA, and would not conflict for that reason. And therefore Ms. English is SOL. Do I have that right?
I think that’s right. The FVRA is (1) the only way to designate an acting official in some situations; (2) an alternative available way to designate an official in others and (3) does not apply to some.
I assume that you could have statutory language that puts a particular office into category 3 (such as currently exists in Section 3349c). But, absent something clear like that, the subsequent statute creates category 2.
But, who knows, Ms. English may be able to convince the courts otherwise. The 9th Circuit is not binding in DC.
If there is a court challenge, any chance it will go directly to the Supremes so time is not wasted bickering?
Tru dat. But the District Court for DC (and subsequently, the DC Circuit) would presumably feel obligated to explain why they came to the conclusion that the Ninth Circuit’s reasoning in the NLRB case didn’t apply here.
Sounds like a tough argument to make. I wish it weren’t so, because I’d much rather have English than Mulvaney in charge of the CFPB, but I’m not gonna cry ‘foul’ if the Federal courts for DC rule against English.
Falchion had an excellent summation of how the two laws might apply in this case, but I’d like to add one point for context.
In reading laws, there’s a few basic rules for interpreting what laws mean. The first and most important is that we should presume that Congress means what it says and says what it means when writing a law, and also if something is not said that is usually held to be significant as well. So in this case if Congress meant for the CFPB to have a special procedure outside of the Vacancies Act for appointing interim Directors, this issue would be moot if the words “Notwithstanding the Vacancies Reform Act…” had appeared. But they don’t, so we are left with ambiguity.
Following a close second in importance is that if two laws can be read to give full effect to each law, one should attempt to interpret both laws to give full effect to each statute. So in this case, the fundamental question the courts must answer is whether both the Dodd-Frank law and the Vacancies Act can be read in a way such that they do not conflict with each other, while not jumping through extraordinary hoops to do so? (In my opinion, they can, such that Dodd-Frank did not actually do away with the Vacancies Act for this position, which as mentioned before is not in the text of the law, but more of a subjective question of whether there was an implied waiver of the Act.)
It is only if the conflict between two laws is irreconcilable (law A says turn right, law B says turn left) that other tools are used to determine which law should control. Among those tools is that the later in time law would generally (but not always!) be given precedence.
And if you stop to think about this, it makes perfect sense. If we were to adopt the position that every new law should be presumptively read to implicitly wipe out every law that came before it, with no need for the prior laws to be explicitly wiped out; how would you know what the law actually dictates when you pick up a copy of the US Code and start reading it? We would have a mess of arguments as to whether new laws are implicitly wiping out old laws, instead of attempting to read every provision of law to have equal standing (so far as it is possible).
In my opinion, the argument from the CFPB/Warren/Cordray side would be open and shut if Dodd-Frank had said, “The Vacancies Act is waived for this position.” Instead, the main argument seems to be, “Well, that’s what Congress really meant, even if it wasn’t written down.” I think that argument fundamentally fails the first test of, “legislatures mean what they say and say what they mean.”
This was an excellent summary, but I just wanted to add that the DC Circuit might use congressional intent as justification for breaking with the 9th Circuit’s opinion. So, if documents show that when the law was being created, Legislators were concerned about the President interfering with the agency in this manner and failed to make their intent clear in the statute, Ms. English might have a slightly higher chance at winning. Of course, judges differ on the weight they give congressional intent and some believe it shouldn’t be used at all. Plus, I have no knowledge of documents showing that was the congressional intent behind Dodd-Frank. That being said, I believe she’ll lose even if I also believe she would have been far superior at the job than Mulvaney.
Didn’t want to quote the whole thing, but I just wanted to say that that added a great deal to my understanding. Props to both you and Falchion for fighting my ignorance!
Interesting article at Lawfare today: Acting Accordingly: Acting Officers and the Federal Vacancies Reform Act