Past and present Democratic Representatives and Senators filed an amicus brief in support of the motion for a temporary restraining order filed by Leandra English to block Mick Mulvaney from exercising the authority of CFPB Acting Director.  The court granted the lawmakers’ motion for leave to file the brief before its denial of Ms. English’s TRO motion.

Republican Attorneys General from eight states filed a motion seeking leave to file an amicus brief in support of President Trump and Mick Mulvaney, the named defendants in Ms. English’s lawsuit.  The eight states are Texas, West Virginia, Alabama, Arkansas, Georgia, Louisiana, Oklahoma, and South Carolina.  The motion included a copy of their proposed amicus brief as an exhibit.  Following its denial of Ms. English’s TRO motion, the court entered an order denying the AGs’ motion as moot but “without prejudice to re-filing for leave to file a brief with respect to the merits or any additional motions for injunctive relief.”

In their amicus brief, the Democratic lawmakers argue that the CFPA provision that states the Deputy Director “shall serve as Acting Director in the absence or unavailability of the Director” supplants the Federal Vacancies Reform Act (FVRA) and provides the sole means for temporarily filling a vacancy in the position of CFPB Director until Senate confirmation of a new Director.  They assert that such a reading of the CFPA provision is consistent with the CFPA’s structure and legislative history.

The Republican AGs, in their proposed amicus brief, argue that the CFPA cannot override the President’s appointment authority under the FVRA without raising separation of powers concerns under Article II of the U.S. Constitution.  They assert that, to avoid such constitutional issue, the court should hold that the President has the authority under the FVRA to appoint the CFPB Acting Director.  (In his oral ruling denying Ms. English’s TRO motion, Judge Kelly suggested constitutional separation of powers concerns might arise if the President was prevented from exercising his FVRA authority.)