On Friday, Richard Cordray resigned as director of the Consumer Finance Protection Bureau. On the same day, he sent a letter to CFPB employees announcing that he had appointed Leandra English as deputy director of the CFPB. He wrote that “upon my departure, she will become the acting director pursuant to” a provision of the Dodd-Frank Act, which states that the deputy director “shall ... serve as acting Director in the absence or unavailability of the Director.”
Hours later, however, President Donald Trump announced that he would be designating Office of Management and Budget Director Mick Mulvaney as acting director of the CFPB. He did so under the authority of the Federal Vacancies Reform Act of 1998 (FVRA), which gives the president the authority to appoint acting officers to temporarily fill vacant positions requiring Senate confirmation. Though the Office of Legal Counsel and the CFPB’s own general counsel have since both advised that the appointment of Mulvaney was legal, English has now sued the Trump administration to be reinstated as acting director.
Who is acting director of the CFPB? Putting aside serious constitutional concerns with the statute under which English purports to act as director, the interpretive dispute centers on FVRA Section 3347(a), which states that the FVRA is itself “the exclusive means for temporarily authorizing an acting official … unless a statutory provision expressly … designates an officer or employee” to serve as an acting official. Since Dodd-Frank plausibly qualifies as such a statutory provision, some have argued that the FVRA does not apply to the director of the CFPB, and that Trump is therefore powerless to designate Mulvaney or anyone else as the acting director.
This argument is wrong. It is wrong, first and most fundamentally, because even if the FVRA is not “the exclusive means” to fill the CFPB slot, it is still an available means. FVRA Section 3349(c) explicitly lists certain offices that the FVRA “shall not apply to,” including multi-member boards and Article I judgeships. If Congress wished for the FVRA to be unavailable whenever an office can be temporarily filled using another statute, Congress would have listed those offices under Section 3349(c). But it did not, and so “the exclusive means” should be read to mean what it says, and nothing more.
Second, the Senate sponsors of the FVRA flatly rejected this interpretation of their own bill. The Senate Committee Report on the FVRA identified 40 statutes that qualified under 3347(a) as alternative means of filling vacancies in 37 different offices. The Report then plainly stated that “even with respect to the specific positions in which temporary officers may serve under the specific statutes this bill retains, the Vacancies Act would continue to provide an alternative procedure for temporarily occupying the office.”
Third and finally, an understanding of the political forces at play in 1998 makes it clear that the exception to exclusivity was meant as a consolation to executive power, not a limitation of that power. As FVRA sponsor Senator Robert Byrd explained, “the matter of exclusivity [of the Vacancies Act] is the bedrock point on which the executive and legislative branches have historically differed.” The FVRA proclaimed its exclusivity so that the executive branch would no longer make “use of general, ‘housekeeping’ statutes as a basis for circumventing the Vacancies Act.”
Why then was Congress willing to waive that exclusivity for 37 offices? Most likely because their vacancy statutes were limited in scope and popular with the executive, since nearly all placed no time limits on acting service. Congress’s purpose was thus to avoid a presidential veto by retaining the status quo, not to punish the president by inexplicably limiting his appointment power in only 37 particular offices.
This clear authority of text, purpose, and history is why the Office of Legal Counsel has twice before come to the same conclusion: “That the Vacancies Reform Act is not exclusive does not mean that it is unavailable.”
Still, some argue that even if the FVRA is available for those 37 offices established prior to 1998, the CFPB is different because it was created after the FVRA was passed and because Dodd-Frank makes no mention of the FVRA’s applicability.
This argument is unconvincing. The FVRA is a background statute; by its own terms, it applies to any “officer of an Executive agency” requiring Senate confirmation, except for the explicit exceptions mentioned in the FVRA itself. The director of the CFPB meets these criteria. While a statute enacted subsequent to the FVRA could certainly “opt out” by explicitly stating that the FVRA does not apply, Dodd-Frank does not do so. Though some argue that the phrase “shall … serve as acting Director” implies a pre-emption of the FVRA, this use of “shall” simply mirrors several of the acting-officer statutes enacted before 1998. More than that must be required before a statute should be interpreted as effectively amending the FVRA itself.
The FVRA’s legislative history does not contradict this analysis. Professor Adam Levitin points to a paragraph in the Senate Report stating that acting-officer “statutes enacted in the future ... are not to be effective unless they expressly provide that they are superseding the Vacancies Reform Act.” Levitin argues that this means “for future statutes, the FVRA is either exclusive or does not apply.” But this passage was based on the Senate Report’s draft of the FVRA, which explicitly distinguished between pre- and post-1998 offices, and which held that the FVRA would be “applicable” unless future statutes expressly superseded it. In the final version of the bill, “applicable” was changed to “exclusive,” and the distinction between pre- and post-1998 was eliminated, as was the requirement that post-1998 statutes expressly state that they are superseding the FVRA.
This passage from the Senate Report was a plausible interpretation of the earlier version, but not of the enacted version, which eliminated any suggestion that post-1998 statutes could not be subject to both the FVRA and another acting-officer- statute. Thus, this passage has no weight in interpreting the enacted version.
All sides can agree that it is imperative for President Trump to put forward a permanent nominee for director without delay. But for the time being, Mick Mulvaney is the lawful acting director of the CFPB.