The President alone gets to fill political vacancies

robert romano

There is no question that President Donald Trump can appoint Office of Management and Budget Director Mick Mulvaney to serve as the acting director of the Consumer Financial Protection Bureau in lieu of Senate confirmation.

Under the Constitution, the President alone determines who heads up agencies for the federal government.

Specifically, under Article II of the Constitution, the President “by and with the advice and consent of the Senate, shall appoint… all other officers of the United States” besides ambassadors and judges.

Sometimes, however, executive agency officers will resign from their posts, creating a vacancy, as with the case of former director of the Consumer Financial Protection Bureau Richard Cordray.

Fortunately, Congress provided for such cases.

When that happens, under 5 U.S.C. 3345(a), either, “(1) the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346;” or “(2) notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346.”

Under section 3346, the acting director then would get to serve for 210 days from the date the vacancy was created.

Now, there is also 12 U.S. Code § 5491(b)(5)(B), which states the deputy director of the Consumer Financial Protection Bureau, who is appointed by the director, may “serve as acting Director in the absence or unavailability of the Director.”

On his last day in office, Cordray attempted to install his own successor, Leandra English, as deputy director of the agency. Following the letter of the law above, clearly, English could have served as the acting director under the law.

That is, unless the President says otherwise and appoints his own acting director, potentially by giving the job to another official who has already been confirmed by the Senate. Mulvaney fits that description.

It’s really that simple.

Which makes it no wonder a federal judge has thrown out English’s junk lawsuit, which can only be described as an attempted coup to take over and establish a rogue agency that was already on dubious constitutional footing.

After all, this is the same agency that is funded, not by Congress, but via the Federal Reserve’s printing press. Other extraconstitutional provisions include a section of Dodd-Frank that only allows the director of the agency to be removed “for cause,” an attempt to supersede the presidential appointment power outlined above.

In short, the Consumer Financial Protection Bureau is the poster child for the administrative state.

Now that Cordray has exited, Americans for Limited Government President Rick Manning has blasted the agency and called for a rollback of regulations, saying, “acting director Mulvaney needs to get to work to roll back the agency’s economy-crippling regulations that Richard Cordray left in his wake. That includes ending a 1,700-page rule to regulate short-term loans and discontinuing the largest government consumer database that currently monitors more than 87 percent of the consumer credit card market, endangering Americans’ financial privacy.”

Manning added, calling for new accountability to be instilled by Congress, “Mulvaney’s appointment should not lessen Congress’ resolve to end the unconstitutional delegation of funding oversight authority that created this regulatory monstrosity of an agency.”

That would indeed be a good start to reining in this rogue agency. Already, Mulvaney has called for a moratorium on new regulations. Next up, President Trump should dust off his famous line from The Apprentice, “You’re fired,” and terminate English “for cause.” The reason? She tried to personally take over a federal agency in defiance the Constitution and federal law. Sounds like a good enough reason.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government.

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