As Dave Dayen explained earlier this week, there will soon be a showdown over who will run the Consumer Financial Protection Bureau as Trump attempts to replace retiring director Richard Cordray with right-wing zealot and current head of the OMB, Mick Mulvaney: There’s a Hitch in Trump’s Plan to Stick Mick Mulvaney on the CFPB: It’s Illegal:
As soon as Richard Cordray, the current director of the Consumer Financial Protection Bureau, officially resigns — which could happen as soon as this week — we are told President Donald Trump will choose Mick Mulvaney, the current director of the Office of Management and Budget, to run the CFPB on a temporary basis.
It would be a GOP dream come true. Mulvaney, who once called CFPB a “sad, sick joke,” would then be able to carry out the long-desired conservative wish to dismantle the agency that safeguards consumers from the deceptions of banks and credit card companies.
Practically every media outlet has carried this report about Mulvaney to CFPB. There’s only one problem: it’s not Trump’s pick to make.
That fact, and expected resistance to that fact inside the White House, could create a titanic legal battle, and a scenario with competing interim directors of the agency, which has become a political football ever since Congress created it in 2010. “This will be like the situation where you had two popes,” said Jeff Hauser, executive director of the Revolving Door Project at the Center for Economic and Policy Research.
Adam Levitin, Georgetown Law professor and former CFPB adviser, was the first to point this out. The statute that created the CFPB is pretty clear: In the event of the absence of a director for the agency, the deputy director serves that role. The director appoints the deputy director; it doesn’t require Senate confirmation.[...]
The Trump administration has labored under the idea that the Federal Vacancies Reform Act would control any vacancy at the CFPB. Under that law, the president can appoint a Senate-confirmed official, like Mulvaney, to any vacant executive agency leadership position. This temporary appointment lasts for either 210 days or as long as a nomination for a permanent replacement is before the Senate.↓ Story continues below ↓
But the Federal Vacancies Reform Act statute states specifically that it doesn’t apply to agencies where “a statutory provision … designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity.” And Levitin believes the CFPB’s designation of authority to the deputy director if the director is absent serves that function. “That plain language is an express provision for a different succession,” Levitin wrote.
Mulvaney would be a disaster as Jordan Weissmann discussed at Slate: Mick Mulvaney Wanted to Eliminate the Consumer Financial Protection Bureau. Now Trump’s Putting Him in Charge of It.:
The Consumer Financial Protection Bureau is the federal regulator charged with policing the predatory behavior of banks, payday lenders, student loan servicers, and all manner of other financial institutions that have a habit of ripping off customers.
Mick Mulvaney is the deeply conservative and rhetorically inept former congressman from South Carolina who now serves as Donald Trump’s budget director. You may remember him from the time he told reporters that Meals on Wheels “doesn’t work.” Or his flailing attempts to redefine the word compassion to mean cutting programs that help the elderly. He is also, generally, not a fan of regulations or regulators, and especially not the CFPB. “I don’t like the fact that CFPB exists, I will be perfectly honest with you,” Mulvaney once said during a House committee hearing. He also co-sponsored a bill to eliminate the bureau. [...]
Leaving the CFPB in the hands of a man who would like to do away with it obviously bodes poorly for the bureau’s future. Mulvaney’s appointment may only be temporary, but he will likely begin the process of substantially weakening the agency. The move is also, of course, very Trumpian—akin to putting oil shill Scott Pruitt in charge of the Environmental Protection Agency or tapping Rick Perry to lead the Department of Energy after he called for its demise. This is one more step in the destruction of the administrative state through appointments. The brazenness of it would make you laugh if you weren’t already crying.
Over on state-run television, otherwise known as Fox "News," putting the fox in charge of the hen house is somehow an example of "swamp draining." Sadly, the segment above is not from The Onion, but how the yappers on Fox & Friends portrayed the move and defended their Dear Leader Trump this Sunday:
HEGSETH: This is a perfect crystallization of president Trump versus the swamp. The swamp says we have our CFPB. We're regulate businesses. We're going to use the power of government unchecked to.... look, the CFPB is useful if you are making sure that people who have a credit card know what their interest rate is, right? A consumer should know, the fine print shouldn't be so fine print you get screwed by it.
But, it's been so overreaching, it's being burdensome to businesses. What the Trump administration, a business friendly administration has said, let's pull that back, let's put Mick Mulvaney in charge to make sure it's really just doing its limited scope, which is defending consumers, and not being proactive and being aggressive.
The swamp said, “No, no. We want our people from the Obama administration.” And what the Trump administration and Mulvaney is saying is “No.” Now is the time to pull this back. Now is the time to change.
JENKINS: To Pete talking about the swamp, this is an agency that was created to protect against predatory lending by out-of-control mortgage companies...
HEGSETH: Actually, it's done more than that.
JENKINS: What it's actually done is to create an independent agency that usurps the power of the president protect such lenders.
HEGSETH: Correct. That is why this matters to you at home. You're like, what is the CFPB? What is all of this? Obama , the holdover whoever. The reality is that this, a president and an executive who's come to drain the swamp should have a prerogative to choose the people and the agencies that he's in charge of.
In this case you have a director who appointed someone to come in to continue policies of the Obama administration, which the American people in 2016 voted to end. So this president is stepping in to say we're going take a different direction on this agency and be pro-business, as they have from the beginning, which this particular agency has been pro-government, pro-regulation in a different way.
BOOTHE: Yeah, critics say it's just another example of federal bureaucracy.