Yesterday afternoon Judge Timothy Kelly, U.S. District Court for the District of Columbia, ruled that Mick Mulvaney, not Leandra English, is the Acting Director of the CFPB.
Judge Kelly said, in short, that if President Trump had not selected an individual who met the requirements of the Federal Vacancies Reform Act of 1998 (“FVRA”) to serve as the CFPB’s acting director, then Ms. English would be the deputy director and the acting director. But because President Trump selected Mick Mulvaney, who meets the FVRA’s requirements, Mulvaney therefore is acting director and English remains deputy director.
The FVRA states specific exceptions to which it does not apply (e.g. “any member of the Surface Transportation Board”); the CFPB is not one of them. Congress could have amended the FVRA to clearly exempt the CFPB, but it did not. Alternatively, Congress could have specifically said in Dodd-Frank’s statutory text that the FVRA did not apply to Dodd-Frank and/or the CFPB, but chose not to do so. Thus, the FVRA applies to Dodd-Frank because neither statute directly or explicitly (i.e. “expressly”) prohibits it.
The three most commonly stated arguments supporting Ms. English’s desire to be CFPB acting director appear to be (1) Congress passed Dodd-Frank after it passed the FVRA; (2) Mick Mulvaney and President Trump both have said uncomplimentary things about the CFPB; and (3) Mulvaney cannot serve as acting director because of Dodd-Frank’s legislative intent. All three are unpersuasive.
The fact that President Obama signed Dodd-Frank in 2010, after President Clinton signed the FVRA in 1998, is irrelevant to the question of whether the FVRA applies to Dodd-Frank or the CFPB. What is important is that neither Dodd-Frank nor the FVRA specifically state that the FVRA does not apply to Dodd-Frank or the CFPB. The FVRA is always there in the background. For example, the FVRA applies to the Department of Homeland Security and its subagencies such as U.S. Immigration & Customs Enforcement, even though they both came into existence after the FVRA.
The public statements about a particular executive branch agency, either admiring or critical, of a President and/or his nominee to serve as the acting head of that agency are irrelevant to the legal question of whether that nominee may be seated. It would be the same for presidents of any political party and their respective nominees who have been critical or effusive with praise of the IRS, the SEC, or any other cabinet department or agency.
The meaning of Dodd-Frank, the FVRA, or any other statute comes from the statute’s actual text, not its legislative history. It is disconcerting that supporters of Mulvaney’s position and supporters of English’s position both cited legislative history in their respective arguments. Legislative history is not the law; the law is the law. Congress voted on and the President signed Dodd-Frank’s and the FVRA’s actual text, not their legislative histories. As Justice Scalia wrote in his concurrence in Conroy v. Aniskoff, “[t]he greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislatures.” Or, as Justice Scalia wrote in his concurrence in Wisconsin Public Intervenor v. Mortier, “we are a Government of laws, not of committee reports.”
Depending on legislative history is offensive to our bicameral system and to the Constitution, particularly the Presentment Clause. Furthermore, as a practical matter, it is highly unlikely that a single “legislative intent” actually exists amongst 535 different legislators, each with his or her own intentions – or perhaps no intentions at all – and each representing districts or states with their own intentions, if any. It is even more unlikely that a court could genuinely determine these purported intentions. As Justice Scalia wrote in his concurrence in Graham County Soil & Water Conservation District v. United States ex rel. Wilson:
“The Constitution gives legal effect to the laws Congress enacts, not the objectives its Members aimed to achieve in voting for them ... it is utterly impossible to discern what the Members of Congress intended except to the extent that intent is manifested in the only remnant of history that bears the unanimous endorsement of the majority in each House: the text of the enrolled bill that became law.”
From a separation of powers perspective, this litigation is interesting because it pits an executive branch agency against the executive branch itself. Most people, which probably includes most attorneys, find administrative law painfully dry and technical. Perhaps one silver lining to come out of this saga is that more Americans are now better informed of how powerful and pervasive administrative agencies can be and the importance of getting administrative law right.
- 1 - It is unfortunate that there will be those who wrongly criticize Judge Kelly as “unfair” or “biased” merely because President Trump nominated him to the bench. The Senate confirmed him with overwhelming Democrat support, 94-2.
- 2 - See, e.g., 12 U.S.C. § 5491(a), which states, in part, that “Except as otherwise provided expressly (i.e. directly and/or explicitly) by law, all Federal laws [e.g. the FVRA] dealing with public or Federal contracts, property, works, officers, employees, budgets, or funds, including the provisions of chapters 5 and 7 of title 5, shall apply to the exercise of the powers of the Bureau.” (emphasis added)
- 3 - Proponents of this argument seem to be saying that Dodd-Frank’s legislative intent requires an acting director who totally believes in Elizabeth Warren’s vision of the CFPB, which is prima facie ridiculous and unconstitutional, to say the least.
- 4 - It is constitutionally dangerous for the federal courts to intrude on the president’s appointment power in this manner. Unlike Goldilocks, it is impossible for the federal courts to decide how much criticism or praise is too much, too little, or just right. For example: One statement? Two hundred ninety-six statements? TV, radio, internet, social media, text messages, or print? Front-page or buried in the middle? What if either the president or the nominee each made only one statement that was simultaneously equally critical and complimentary of the agency? Should the courts deny a nominee for statements that were overly complimentary to the agency?
- 5 - Even worse, legislative history often contains materials that staff or lobbyists inserted, often without the knowledge of the legislators. Also, which legislative history does the court use, i.e. which house of Congress is more important? The House’s or the Senate’s? The House’s or Senate’s respective committees? What about subcommittees, conference committees, or joint committees? Sworn testimony of which testifying person? What about legislative history that was not written down, i.e. strictly verbal negotiations amongst legislators?