Three amicus briefs have been filed in support of President Trump and Mick Mulvaney, who are opposing the motion for a preliminary injunction filed by Leandra English in her action in D.C. federal district court seeking a declaration that she, rather than Mr. Mulvaney, has the legal right to serve as CFPB Acting Director.
The three amicus briefs were filed by the following amici:
- Credit Union National Association. CUNA is the largest organization representing the nation’s 6,000 credit unions. (CUNA’s amicus brief was authored by Ballard Spahr.)
- Chamber of Commerce. The Chamber represents 300,000 direct members and indirectly represents the interests of more than 3 million companies and professional organizations.
- Republican State Attorneys General. Amici are the attorneys general of the following 13 states: Texas, West Virginia, Alabama, Arizona, Arkansas, Florida, Georgia, Kansas, Louisiana, Michigan, Nebraska, Oklahoma, and South Carolina. (Eight of these AGs filed an amicus brief in support of President Trump and Mick Mulvaney and opposing Ms. English’s request for a temporary restraining order.)
In its opposition to Ms. English’s preliminary injunction motion, the DOJ relies primarily on the argument that the provision in the Consumer Financial Protection Act (CFPA) that provides the CFPB Deputy Director “shall…serve as acting Director in the absence or unavailability of the Director” does not override the President’s authority under the Federal Vacancies Reform Act (FVRA) to temporarily fill a vacancy in an executive agency position requiring confirmation. All three amici agree with the DOJ’s position that the President’s designation of Mr. Mulvaney as Acting Director was entirely proper under the FVRA. They argue that Ms. English’s position, which would deny the President the ability to designate a CFPB Acting Director under the FVRA, raises serious constitutional issues by limiting the President’s executive authority. Citing U.S. Supreme Court case law indicating that preference should be given to a statutory interpretation that avoids a constitutional issue, the amici contend that the D.C. court should rule in favor of President Trump and Mr. Mulvaney to avoid such constitutional issues.
In its amicus brief, CUNA argues further that the phrase “absence or unavailability” in the CFPA provision does not cover a vacancy created by the CFPB Director’s resignation. For the reasons set forth in its brief, CUNA argues such language is more properly read to cover a temporary situation, such as an accident requiring the Director’s long term hospitalization, and not a permanent departure from office. (The Chamber makes similar arguments in its amicus brief.)
In addition to raising constitutional issues by placing limits on the President’s executive authority, CUNA argues that Ms. English’s position raises substantial questions under the Appointments Clause. First, it raises the question whether the Deputy Director/Acting Director is an “inferior officer” or instead a “principal officer” who may only be appointed by the President with the Senate’s consent. In their amicus brief, the Republican State AGs argue that the powers wielded by a CFPB Acting Director are “on par with that of a principal officer who can be nominated and appointed only by the President.”
Second, if the Deputy Director/Acting Director is an “inferior officer,” Ms. English’s position raises the question whether the CFPB is a “department” whose head may constitutionally appoint inferior officers. In its amicus brief, the Chamber argues that the CFPB does not qualify as a “department” for purposes of the Appointments Clause because (1) Congress described the CFPB as a “bureau” in the Dodd-Frank Act and did not designate the CFPB as an executive, Cabinet-level department, and (2) the CFPB is contained in the Federal Reserve and does not exist as a freestanding component of the Executive Branch.
The Chamber also argues that because former Director Cordray was unconstitutionally insulated from Presidential control when he appointed Ms. English as Deputy Director, his appointment of Ms. English as Deputy Director was invalid. The Chamber cites to the decision of a panel of the D.C. Circuit in PHH v. CFPB which held that limiting the President to for-cause removal of the CFPB Director was unconstitutional.