Justice Dept says Trump has authority to appoint CFPB acting director

[TomCADem]

Source: MSN/The Hill

The Justice Department released a memo on Saturday arguing that it is well within President Trump's authority to appoint White House budget chief Mick Mulvaney as the interim director of the Consumer Financial Protection Bureau (CFPB).

In a memo dated Nov. 25, Steven Engel, the assistant attorney general for the Office of Legal Counsel, said that the 1998 Federal Vacancies Act gives the president full authority to appoint an acting director to the watchdog agency, regardless of the CFPB's established line of succession.

The 2010 Dodd-Frank Wall Street Reform Act, which established the CFPB, states that the deputy director is to head the agency in the absence of a permanent director.

"The fact that the Deputy Director may serve as Acting Director by operation of the statute, however, does not displace the President's authority under the Vacancies Reform Act," Engel wrote in the Saturday memo.

Read more: https://www.msn.com/en-us/news/politics/justice-dept-says-trump-has-authority-to-appoint-cfpb-acting-director/ar-BBFDXH3?li=BBnb7Kz

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So, a general 1998 law applies over the more specific and later language of the 2010 Dodd-Frank Wall Street Reform Act? That just seems a bit of a stretch. Did Steven Engel get his law degree online?

[PoliticAverse]

1. The courts will ultimately decide. Just as they did on the recess appointment issue. n/t

[iluvtennis]

2. Law professor and a prosecutor from Watergate days said the new language would "trump" the old.

[democratisphere]

3. Mick "wall street" Mulvaney is going to oversee wall street corruption

and malfeasance regarding the screwing of consumers? Right......!

[FBaggins]

4. The difference between the 1998 and 2010 law

Last edited Sun Nov 26, 2017, 05:35 AM - Edit history (1)

Isn't just general vs specific in this case... because the more general law hasn't been found to be unconstitutional by an appeals court.

Unless the D.C. Court of appeals reverses itself, he'll probably win.

[no_hypocrisy]

5. The matter concerns the Separation of Powers, not the Supremacy Clause.

In other words, the WH doesn't automatically "trump" federal statute.

Plus, there was no "vacancy" as a replacement was already named before Trump woke up to the change.

Let it go to court and both "heads" show up on Monday and see who can run the office. If I were the replacement, I'd get a TRO (emergency preliminary injunction) to allow my decisions to guide the day.

[Arazi]

6. Anybody surprised by this? Trumps DOJ saying Trump has the authority?

[onenote]

7. The issue isn't general v. specific

The issue is the meaning of the word "exclusive" as used in the Vacancies Act and how it relates to the exceptions spelled out in the Vacancies Act. The interpretation relied on by DOJ (and apparently in other instances) gives meaning to the word "exclusive" by saying that even if one of the exceptions applies, the effect of the exceptions merely is to create a second alternative to the Vacancies Act -- i.e, the Vacancies Act is the "exclusive" means unless one of the exceptions applies in which case the Vacancies Act applies, but is not "exclusive." Given that the Vacancies Act pre-dates Dodd-Frank, a reasonable inference can be drawn that if Congress wanted the Dodd-Frank mechanism to supplant the Vacancies Act provision, it could have written that into the law expressly. The failure to do so would seem to support DOJ's claim that where the exceptions apply, the Vacancies Act is an alternative means of filling a position.

That sounds reasonable, but the problem it creates is that it undercuts the exceptions. Even if the Vacancies Act is, as DOJ claims, an alternative means of filling the vacancy, in this situation, Cordray acted to fill that vacancy and the Vacancies Act no longer is applicable. If Cordray hadn't acted, or Trump had acted first, the DOJ argument that the Vacancies Act provided an alternative to the Dodd Frank Act would carry more weight. Consider the other scenario set up by the Vacancies Act exceptions: a statutory provision that automatically fills a vacancy. It makes no sense to claim that the Vacancies Act is an "alternative" in that situation since the vacancy never really existed.

I don't think either side has a slam dunk in this case. But even if a court issues an injunction allowing Cordray's pick to remain in office pending a full hearing on the matter, Trump likely would send Mulvaney's nomination to the Senate and the Senate would rush to confirm him.

[bluestarone]

8. what would the vote need to be?

just wondering does tRump need a majority vote or 2/3rds vote to confirm?

[onenote]

9. majority

[bluestarone]

10. TY then wer'e screwed what the hell is the matter with

these asshole Repubs that continue to move tRumps agenda forward??

[Hortensis]

11. IT'S NOT RUMP'S AGENDA. It's people like those in

the Koch alliance, probably something like 1000 billionaires and centimillionaires who've decided they want to get rid of regulation on them and compulsory taxation for almost everything.

Of course they want control of the internet.

[PoliticAverse]

13. 50 + 1. Harry Reid eliminated the filibuster for appointment confirmations. n/t

[alarimer]

14. And that is now biting Democrats on the ass in a if way.

Should never have made that deal.

[TomCADem]

12. Thanks! So, the DOJ Will Argue That Dodd-Frank Was A Superfluous Act!

I think normal folks would assume that if Congress specified in the Dodd-Frank law how vacancies were filled, then that is how vacancies would be filled as to the Director of the Agency.

But, as you note, courts and lawyers will assume that Congress was merely engaging in a superflous act that was merely optional. If Congress really wanted the vacancy provisions of an agency that was designed to be independent from the President, then Congress had to say they really, really meant it, and list out all of the general laws that are potentially displaced by the law.

This is why the public hates lawyers and the court system. They follow and adhere to rules on interpretation that make no sense to normal folks. You send someone to an expensive law school and they learnt that when Congress passes a law, it really does not change the law, unless they list out all the laws they really intend to change. Plus, even if it leads to an absurd result like the President getting to handpick a replacement of a supposedly independent agency, then that is okay.

I think that sounds crazy, but what do I know? I guess should go to law school where I can learn that up is down and left is right.