This week, national headlines ran with the story of Leandra English's lawsuit against the Trump administration, claiming that Mick Mulvaney's appointment to the Consumer Financial Protection Bureau Director's position was unlawful. Her claim, according to multiple news outlets, was that the outgoing Director appointed her as the new acting Director, making Mulvaney's appointment redundant. For her assertion to be true, her service as the acting Director while the Director is absent, as outlined in 12 USC 5491(b)(5)(B), would have to be considered as actually filling the vacancy of the Director's position making 5 USC 3345 unenforceable. Whether you love or hate Trump, here’s why she’s wrong...
Unfortunately for Ms. English 12 USC 5491(a) clearly states that "The Bureau shall be considered an Executive agency, as defined in section 105 of title 5. Except as otherwise provided expressly by law, all Federal laws 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."
This means that in order for the CFPB to be exempt from 5 USC 3345, 12 USC 5491 would have to expressly (or in writing) specifically exempt it… which it does not.
Another strike against her lies in the wording of 12 USC 5491(b)(5)(B) which states that the Deputy Director shall “serve as acting Director in the absence or unavailability of the Director.” The key to understanding this is the use of the phrase “serve as” instead of “become” or “is appointed.” Meaning that she can only “serve as” the Director if, and only if, there is no other Director at any specific time, but she cannot “become” the Director. The consequences of this, in respect to this case, are significant. It implies that the Director’s position is still considered vacant as long as the Director is absent, but becomes filled if a new Director is appointed via 5 USC 3345. So at no time does she actually become ‘THE’ Director.
Running congruently with this, 12 USC 5491(b)(2) acknowledges that the President is the one that appoints the Director, not the out-going Director when it states “the Director shall be appointed by the President, by and with the advice and consent of the Senate” (5 USC also expressly states that ONLY the President can appoint Director’s, even temporarily).
But why can Mulvaney be “appointed” without “the advice and consent of the Senate?”
Well, legally speaking, he has already received “the advice and consent of the Senate” when he was confirmed as the Director of the Office of Budget and Management.
5 USC 3345 states that “(a) If an officer of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office—
(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;
(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;”
So, in spite of the first executive fulfilling “the functions and duties” of the absent Director, the President can STILL appoint someone else, who has already been confirmed by the Senate for “an office”, to the absent Director’s position temporarily; and because there is no expressly written exemption of 5 USC in 12 USC, the President’s right to fill the vacancy still applies. In essence all 12 USC 5491(b)(5)(B) does is designate the Deputy Director as “the first executive” in 5 USC 3345(a)(1).