Richard Cordray resigned every bit Director of the Consumer Financial Protection Bureau (CFPB) on Fri evening. If Donald Trump did nix to endeavor to supervene upon Cordray temporarily, pending the President's appointment (and the Senate’s confirmation) of a novel Director, in addition to then the CFPB's Deputy Director, Leandra English, would serve every bit the interim, acting Director of the CFPB, pursuant to a provision of the 2010 Dodd-Frank Act, 12 USC § 5491(b)(5)(B), which provides that the Deputy Director “shall . . . serve every bit acting Director inwards the absence or unavailability of the Director.”
The President, however, has purported to appoint OMB Director Mick Mulvaney to hold upwards the acting CFPB Director, pursuant to the 1998 Vacancies Reform Act (VRA). In as it immediately stands, 2 officers may brand it at the CPGB business office tomorrow morning, each claiming that they, alone, direct keep a valid legal claim to the throne.
Notably, the only legal question that divides the parties, at this point, is whether the VRA appointment procedures supersede the Dodd-Frank subdivision 5491 designation of the Deputy Director every bit acting Director inwards cases where the President purports to deed pursuant to the VRA. In this post, I’ll endeavor to unpack the arguments on that question.
The Vacancies Reform Act provides that upon the resignation of a “PAS” officeholder (that is, an officer, such every bit the CFPB Director, who is appointed yesteryear the President yesteryear in addition to amongst the advice in addition to consent of the Senate), “the showtime assistant to the business office of such officeholder shall perform the functions in addition to duties of the business office temporarily inwards an acting capacity bailiwick to the fourth dimension limitations of subdivision 3346.” 5 USC
The adjacent paragraph of the VRA, withal (5 USC § 3345(a)(2)), goes on to render that “notwithstanding paragraph (1), the President (and only the President) may straight a soul who serves inwards an business office for which appointment is required to hold upwards made yesteryear the President, yesteryear in addition to amongst the advice in addition to consent of the Senate, to perform the functions in addition to duties of the vacant business office temporarily inwards an acting capacity bailiwick to the fourth dimension limitations of subdivision 3346.” Mick Mulvaney is such a person—the Senate confirmed him to hold upwards OMB Director. And the President has immediately purported to appoint Mulvaney to hold upwards Acting Director of the CFPB, pursuant to subdivision 3345(a)(2) of the VRA.
The adjacent paragraph of the VRA, withal (5 USC § 3345(a)(2)), goes on to render that “notwithstanding paragraph (1), the President (and only the President) may straight a soul who serves inwards an business office for which appointment is required to hold upwards made yesteryear the President, yesteryear in addition to amongst the advice in addition to consent of the Senate, to perform the functions in addition to duties of the vacant business office temporarily inwards an acting capacity bailiwick to the fourth dimension limitations of subdivision 3346.” Mick Mulvaney is such a person—the Senate confirmed him to hold upwards OMB Director. And the President has immediately purported to appoint Mulvaney to hold upwards Acting Director of the CFPB, pursuant to subdivision 3345(a)(2) of the VRA.
The enquiry of whether the Mulvaney appointment is legal depends upon whether subdivision 3345(a) of the VRA applies to an business office inwards a instance where, every bit here, Congress has elsewhere—and inwards a statute postdating the VRA—specifically designated who “shall” hold upwards the acting officer. And to answer that question, nosotros must turn, at to the lowest degree inwards the showtime instance, to subdivision 3347 of the VRA. It provides inwards pertinent component every bit follows:
§ 3347 Exclusivity
(a) Sections 3345 in addition to 3346 are the exclusive way for temporarily authorizing an acting official to perform the functions in addition to duties of whatever business office of an Executive agency (including the Executive Office of the President, in addition to other than the General Accounting Office,) for which appointment is required to hold upwards made yesteryear the President, yesteryear in addition to amongst the advice in addition to consent of the Senate, unless
(1) a statutory provision expressly
(A) authorizes the President, a court, or the caput of an Executive subdivision to designate an officeholder or employee to perform the functions in addition to duties of a specified business office temporarily inwards an acting capacity; or
(B) designates an officeholder or employee to perform the functions in addition to duties of a specified business office temporarily inwards an acting capacity; or
(2) the President makes an appointment to create total a vacancy inwards such business office during the expose of the Senate pursuant to clause 3 of subdivision 2 of article II of the US of America Constitution.
Note that this section, 3347, is non entitled “Application,” in addition to it does non utter inwards price of when the VRA “applies.” (As I hash out below, the master copy Senate mouth inwards 1998 genuinely was entitled “Application,” in addition to spoke of when the VRA appointment provisions “are applicable.” That linguistic communication was altered during the legislative physical care for inwards 1998.) Instead, it speaks inwards price of when the President’s appointment regime nether the VRA are exclusive. And that’s the cardinal to OLC’s analysis.
So, for example, OLC has previously opined that where unopen to other statute provides a dissimilar machinery yesteryear which an acting officeholder may be appointed, the 2 regime are complementary, i.e., the VRA provisions are no longer exclusive, but they stay available to the President—the 2 provisions (the VRA in addition to the relevant agency statute) are alternative means of filling the business office temporarily. This describes the cases that autumn nether paragraph 3347(a)(1)(A), where unopen to other “statutory provision [apart from of the VRA] expressly . . . authorizes the President, a court, or the caput of an Executive subdivision to designate an officeholder or employee to perform the functions in addition to duties of a specified business office temporarily inwards an acting capacity.” Thus, for example, OLC concluded inwards 2007 that President Bush could utilization the VRA to appoint Peter Keisler, in addition to then caput of the Civil Division, to hold upwards acting Attorney General after Alberto Gonzales resigned, notwithstanding a statute providing that the business office of Attorney General is vacant, the Deputy Attorney General “may practice all the duties of that office.”
That longstanding OLC reading of subdivision 3347 every bit applied to paragraph 3347(a)(1)(A) cases is, I think, mostly sound, every bit the U.S. Court of Appeals for the Ninth Circuit confirmed inwards a 2016 instance (did say—that the Vacancies Reform Act governs the appointment of an acting Director inwards the instance of a vacancy.) In such cases of an unequivocal, mandatory statutory designation of the acting officer, the declaration goes, the President may non practice his appointment potency nether the VRA, because Congress itself has already settled the enquiry of who serves. [UPDATE: I handgrip amongst Dan Hemel that the utilization of “shall” does non necessarily betoken a congressional intent that the Deputy Director would serve every bit acting Director fifty-fifty inwards a instance where the President preferred another, Senate-confirmed, officeholder to do so. I do, however, recollect that it establishes a presumption of such intent, in addition to I’m non persuaded yesteryear Dan’s showtime argue for rebutting that presumption. His minute reason, however—he’s “skeptical that Congress would direct keep wanted the CFPB to hold upwards headed indefinitely yesteryear an official who was non presidentially appointed or Senate confirmed, without whatever statutory avenue for the President to choice someone else”—warrants to a greater extent than attention, however. And to a greater extent than broadly, I recollect that if a courtroom or anyone else is going to answer this question, it would hold upwards rattling beneficial to direct keep a much greater agreement than I do virtually the nature of Congress’s intent inwards 2010, when it enacted the “shall serve” provision.] [UPDATE: As I hash out below, the Dodd-Frank provision would also hold upwards largely superfluous if its only component were to render an alternative, rather than an exclusive, way of filling the vacancy, because that option was already present--indeed, it's the default rule--in subdivision 3345(a)(1) of the Vacancies Reform Act.]
OLC addresses this argument—what is the consequence on the VRA procedures when a subsequent Congress specifically designates the officeholder who “shall serve” every bit acting Director?—in a unmarried paragraph of its catch yesterday, running over from page 5 to page 6. It offers 2 arguments for why the VRA remains an option method of filling a vacancy, fifty-fifty where a later on enacted statute provides that a item officeholder “shall serve” inwards the seat on an acting basis. [UPDATE: By contrast, the opinion letter of the CFPB General Counsel, issued today, does non fifty-fifty address the crucial "shall serve" question.]
OLC’s showtime declaration does non brand sense, if I sympathise it correctly. OLC notes that the VRA “default” rule, inwards subsection 3345(a)(1), quoted above, “similarly uses mandatory terms”; it provides that inwards the instance of a vacancy “the showtime assistant to the business office of such officeholder shall perform the functions in addition to duties of the business office temporarily inwards an acting capacity bailiwick to the fourth dimension limitations of subdivision 3346.” And, OLC notes—correctly—the President tin flame for sure supersede that rule yesteryear making an appointment pursuant to the adjacent paragraph, subdivision 3345(a)(2). “Accordingly,” OLC concludes, “we cannot catch either statute every bit to a greater extent than mandatory than the other. Rather they should hold upwards construed inwards parallel.” In other words, because the President tin flame override the “shall perform” designation of subdivision 3345(a)(1) of the VRA, so, too, tin flame he override the “shall serve” designation of the Deputy Director inwards the later-enacted Dodd-Frank statute.
I must confess that I don’t larn this argument. After all, the argue that subsection 3345(a)(2) of the VRA supersedes the default dominion of subsection 3345(a)(1) inwards cases where the President acts is that the latter paragraph expressly provides that “notwithstanding paragraph (1), the President (and only the President) may straight a soul who serves inwards an business office for which appointment is required to hold upwards made yesteryear the President, yesteryear in addition to amongst the advice in addition to consent of the Senate, to perform the functions in addition to duties of the vacant business office temporarily inwards an acting capacity bailiwick to the fourth dimension limitations of subdivision 3346.” That it to say, it is an limited carve-out from the mandatory linguistic communication of paragraph (1) of the VRA itself. Section 3345(a)(2) does non say, however, that the President tin flame utilization his VRA appointment potency “notwithstanding paragraph (1) or the mandatory designation of an acting officeholder inwards whatever other statute.” Therefore I do non run across the relevance of the fact that subsection 3345(a)(2) of the VRA tempers the application of subsection 3345(a)(1) of that same statute—a fact that simply does non utter to the comport upon of Congress’s designation inwards Dodd-Frank.
Therefore, OLC’s decision stands or falls on its minute argument, which depends only (and ironically, unopen to mightiness say, inwards lite of the full general aversion to legislative history amid many of those who back upwards the President’s potency here) on a reading of the 1998 Senate Report that preceded enactment of the VRA. As OLC notes, pages 16-17 of that Report listed forty then-existing statutes that prescribed unopen to method of filling vacancies inwards item offices, in addition to the Report noted that such regime would hold upwards “retain[ed]” yesteryear the Senate version of the VRA. Those forty statutes included an array of formulations, but were of iii basic kinds: (i) unopen to authorized the President, a court, or the caput of an Executive department, to designate an officeholder or employee to perform the functions in addition to duties of a specified business office temporarily inwards an acting capacity; (ii) unopen to (in the words of the Report) “provide[d] for an automatic designation, unless the President designates unopen to other official” (see, e.g., those I listing inwards footnote 1 below); in addition to (iii) at to the lowest degree 5 of them, listed inwards footnote 3 of yesterday’s OLC opinion, were like to the later CFPB statute, inwards that they simply designated a item officeholder or employee to perform the functions in addition to duties of a specified business office temporarily inwards the instance of a vacancy.
OLC states that inwards all three of these categories of cases—including all forty statutes cited inwards the Report—“Congress plainly intended inwards those cases that the President could invoke the Vacancies Reform Act every bit ‘an option procedure’ in addition to depart from the statutory gild of succession” (quoting page 17 of the Senate Report). The only authority OLC offers for this crucial gloss on subdivision 3347 of the VRA, however, is the source of its “an option procedure” quotation—namely, page 17 of the Senate Report itself. And at that spot are at to the lowest degree 4 reasons why that quotation from page 17 does non firmly constitute what OLC suggests it does.
First, it is, after all, exactly a snippet from a commission report—hardly the sort of affair that mightiness authoritatively explain, or inform—or fifty-fifty render a background, defeasible interpretive dominion for—what Congress meant inwards 2010 when it provided, inwards no uncertain terms, that the Deputy Director “shall serve” every bit acting Director.
Second, in addition to every bit OLC expressly acknowledges (see p.5 of the opinion), the Senate version of subdivision 347 of the VRA, which was the bailiwick of the give-and-take inwards the Senate Report, was non ultimately enacted—the linguistic communication on which Congress ultimately settled is quite different.[2]
Third, OLC’s traditional reliance on the Senate Report to back upwards the full general suggestion that the VRA remains “available” every bit an “alternative” way of filling vacancies, fifty-fifty where office-specific statute prescribe other methods, depends upon the judgement inwards enquiry on page 17 of the Report (“[E]ven amongst honor to the specific positions inwards which temporary officers may serve nether the specific statutes this mouth retains, the Vacancies Act would proceed to render an option procedure for temporarily occupying the office.”)—and yet that declaration was apparently incorrect as a reading of the linguistic communication of 3347 that was inwards the Senate mouth itself. That version of 3347 provided (see banker's complaint 2 below) that the VRA provisions would hold upwards “applicable . . . unless” an existing statute provided a dissimilar way of filling the vacancy of a item office: In other words, if the Senate version had been enacted, the presidential appointment potency nether the VRA would non direct keep been “applicable” in such cases. Therefore, the Report judgement inwards enquiry is of dubious authority, fifty-fifty on its ain terms, in addition to every bit applied to the (unenacted) mouth it was describing. (The only argue the VRA continues to “apply” inwards any such cases, then, is non because of the (flawed) Report language, but because Congress ultimately enacted a dissimilar version of subdivision 3347, i that replaced the Senate’s “applicable unless” linguistic communication amongst a declaration virtually when the VRA procedures are non to hold upwards “exclusive.”)
Fourth, in addition to perhaps most importantly, OLC has selectively quoted the relevant judgement on page 17 of the Senate Report. Recall OLC’s conclusion: that “Congress plainly intended inwards those cases”—all of the dissimilar cases enumerated inwards the forty statutes listed—“that the President could invoke the Vacancies Reform Act every bit ‘an option procedure’ in addition to depart from the statutory gild of succession.” The judgement on page 17, however, refers specifically to the VRA remaining an “alternative procedure” only “with honor to the specific positions inwards which temporary officers may serve nether the specific statutes this mouth retains.” That judgement does non brand reference to the handful of statutes (OLC cites 5 of them) inwards which Congress specifically designated an officeholder who “shall” (not “may”) serve inwards an acting capacity; in addition to it certainly did non constitute a background presumption, against which future Congresses mightiness sympathise they would hold upwards acting, that the Vacancies Act would proceed to render an option physical care for fifty-fifty where the later-in-time legislature prescribed such a specific designated acting officer, without whatever advert of the prospect of an option presidential appointment.
[UPDATE: I had meant to add together unopen to other argument, flagged to me yesteryear my colleague Adam Levitin: If the only component of the Dodd-Frank provision for filling the vacancy inwards the business office of Director were, every bit OLC concludes, to render an alternative, rather than an exclusive, way of filling that vacancy, there'd direct keep been no compelling argue for Congress to direct keep enacted it, because that alternative--for the Deputy to accept over the business office temporarily-- was already present--indeed, it's the default rule--in subdivision 3345(a)(1) of the Vacancies Reform Act itself. I recollect this is an interesting point, but doesn't resolve the question, because fifty-fifty though the VRA already provides for the prospect of the Deputy acting every bit Director, the Dodd-Frank provision would soundless direct keep at to the lowest degree 2 farther functions: (i) It would brand her term indefinite, i.e., until a successor is confirmed, whereas the VRA designation is time-limited; in addition to (ii) it also applies to cases where the Director remains inwards business office but is otherwise "absent or unavailable," e.g., inwards the instance of recusal or debilitating illness.]
[UPDATE: I had meant to add together unopen to other argument, flagged to me yesteryear my colleague Adam Levitin: If the only component of the Dodd-Frank provision for filling the vacancy inwards the business office of Director were, every bit OLC concludes, to render an alternative, rather than an exclusive, way of filling that vacancy, there'd direct keep been no compelling argue for Congress to direct keep enacted it, because that alternative--for the Deputy to accept over the business office temporarily-- was already present--indeed, it's the default rule--in subdivision 3345(a)(1) of the Vacancies Reform Act itself. I recollect this is an interesting point, but doesn't resolve the question, because fifty-fifty though the VRA already provides for the prospect of the Deputy acting every bit Director, the Dodd-Frank provision would soundless direct keep at to the lowest degree 2 farther functions: (i) It would brand her term indefinite, i.e., until a successor is confirmed, whereas the VRA designation is time-limited; in addition to (ii) it also applies to cases where the Director remains inwards business office but is otherwise "absent or unavailable," e.g., inwards the instance of recusal or debilitating illness.]
For these reasons, I recollect OLC’s decision virtually the continued applicability of the VRA to later-enacted statutes, such every bit Dodd-Frank, specifying a item officeholder who “shall serve” inwards an acting capacity, is at the rattling to the lowest degree contestable. A reviewing courtroom might handgrip amongst it—but it mightiness not. [UPDATE: I highly recommend Nina Mendelson's post, which offers farther reasons--including, toward the end, unopen to of import functional considerations--that also dot against the President's potency to appoint Mulvaney.]
As for how this whole contretemps mightiness cease upwards inwards courtroom whatever hateful solar daytime now, run across Sam Bray’s post on the maybe forthcoming quo warranto proceeding.
[1] See, e.g., 40 U.S.C. § 751(c)) (providing that the Deputy Administrator of the General Services Administration “shall hold upwards Acting Administrator of General Services . . ., unless the President shall designate unopen to other officeholder of the Government, inwards the trial of a vacancy inwards the business office of Administrator”); 38 U.S.C. § 7254(d)) (providing that the “[i]n the trial of a vacancy inwards the seat of main approximate of the Court [of Veterans Appeals], the associate approximate senior inwards service on the Court shall serve every bit acting main approximate unless the President designates i of the other associate judges to serve every bit acting main judge, inwards which instance the approximate thus designated shall serve every bit acting main judge”).
[2] The Senate version read:
§ 3347. Application. (a) Sections 3345 in addition to 3346 [the provisions giving the President the potency to appoint persons to vacant offices temporarily] are applicable to whatever business office of an Executive agency (including the Executive Office of the President, in addition to other than the General Accounting Office) for which appointment is required to hold upwards made yesteryear the President, yesteryear in addition to amongst the advice in addition to consent of the Senate, unless—
(1) unopen to other statutory provision expressly provides that the such provision supersedes sections 3345 in addition to 3346;
(2) a statutory provision inwards consequence on the appointment of enactment of the Federal Vacancies Reform Act of 1998 expressly— (A) authorizes the President, a court, or the caput of an Executive department, to designate an officeholder or employee to perform the functions in addition to duties of a specified business office temporarily inwards an acting capacity; or (B) designates an officeholder or employee to perform the functions in addition to duties of a specified business office temporarily inwards an acting capacity; or (3) the President makes an appointment to create total a vacancy inwards such business office during the expose of the Senate pursuant to clause 3 of subdivision 2 of article II of the US of America Constitution.
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