Observations On The Government's Commencement Brief Inwards English V. Trump & Mulvaney

President Trump together with Mick Mulvaney possess got filed their opposition to Leandra English’s displace for a temporary restraining guild against Mulvaney.  The displace is straightaway inward the hands of newly appointed Judge Timothy Kelly.  Here are closed to quick observations virtually the government’s brief:

1.  On the primal merits point—whether the 2010 Dodd-Frank statute providing that the Deputy Director “shall serve” equally acting Director inward the representative of a vacancy supersedes the President’s authorisation nether the Vacancies Reform Act of 1998--DOJ somewhat surprisingly continues to Pb (p.11), equally did the post Sunday, I explained why such reliance, on (unpersuasive) written report language concerning linguistic communication inward a proposed version of the VRA that was altered past times the fourth dimension Congress enacted the legislation, is unpersuasive.  

2.  The quotations inward the brief from the 1998 Senate Report are a cut-and-paste chore from passages 2 pages apart inward the Report, together with (as I explained on Sunday) elide the primal linguistic communication from the instant of those passages.  Use of such selective together with disingenuous quotation as the Pb declaration undermines, rather than supports, DOJ’s proposed reading of Dodd-Frank’s “shall serve” provision.

3.  DOJ adverts, almost equally an afterthought (pp. 12-13), to Dan Hemel’s argument virtually subsection 5491(a) of Dodd-Frank (“Except equally otherwise provided expressly past times law, all Federal laws dealing amongst populace or Federal contracts, property, works, officers, employees, budgets, or funds, including the provisions of chapters 5 together with seven of championship 5, shall apply to the do of the powers of the Bureau.”).  I'm non persuaded past times that argument, because the “shall serve” provision inward the real adjacent subsection is such an limited provision of law; but, inward whatsoever event, that declaration is straightaway inward play, too.

4.  DOJ relies heavily throughout the brief on the authorisation of Saturday's OLC opinion, alone to hence (fn. 2) weirdly "reserve the correct to contest" OLC's conclusion--from but 2 days earlier!--that the phrase "absent or unavailable" inward Dodd-Frank subdivision 5491(b) covers cases of resignation past times the Director.

5. The brief also oddly states at to the lowest degree 5 times that Director Cordray "purported" to scream Leandra English linguistic communication equally Deputy Director--and fifty-fifty reserves the correct (fn.2) to challenger whether she is the Deputy!  I possess got no thought what the (unstated) theory mightiness survive to challenge that appointment.

6. Footnote 2 hints that Trump could (and might) take away English linguistic communication at will.  See my post yesterday on why that prospect casts a deep shadow over this legal dispute.

7.  As it seems to create equally a affair of course of education these days, DOJ trots out its novel favorite Mississippi v. Johnson argument (p.14), insisting that the courtroom cannot number the requested injunction even if Mulvaney is serving unlawfully:

[E]ven if the President’s designation of Acting Director Mulvaney was non authorized past times the VRA, this Court would nonetheless lack jurisdiction to grant Plaintiff her requested relief of an injunction against the President. The Supreme Court has long held that courts possess got “no jurisdiction of a nib to tell the President inward the surgical physical care for of his official duties.” Mississippi v. Johnson, 71 U.S. at 500–01 (“The Congress is the legislative subdivision of the government; the President is the executive department. Neither tin survive restrained inward its activity past times the judicial department.”). Given the President’s unique condition inward the constitutional scheme, the Court cannot number an injunction restraining the President’s do of his appointment power.

I’ve elsewhere explained why DOJ has, well, stayed inward Mississippi a fleck equally good long.  (See also Steve Vladeck’s comprehensive post.)  The Mississippi v. Johnson argument is peculiarly misplaced here, because English linguistic communication has requested relief against an officeholder other than the President (“plaintiffs asking that the Court . . . [o]rder that accused Mulvaney shall refrain from accepting whatsoever appointment to the seat of Acting Director of the Consumer Financial Protection Bureau, or asserting or exercising inward whatsoever way the authorisation of that office”) that would resolve the case.

8.  Several career CFPB attorneys signed the brief, suggesting that there's piffling or no resistance inward the way to Mulvaney's assertion of authority.  Indeed, the brief states categorically (p.4) that "CFPB staff (with the exception of Plaintiff) is treating Mulvaney equally the Acting Director."