The lines of support are very clearly drawn in the battle over who should serve as interim director of the Consumer Financial Protection Bureau.
Republicans, on the other hand, support Mick Mulvaney, who also has the support of President Donald Trump. Trump named Mulvaney interim CFPB director after Cordray stepped down.
English fought back against Trump, suing Trump and Mulvaney in federal court over Mulvaney’s appointment, but after federal judges twice supported Trump’s authority to name an interim CFPB director, Mulvaney has been acting as interim director of the CFPB ever since.
But English hasn’t stopped fighting for a position that she feels is rightly hers.
And while English will soon have her day in the U.S. Court of Appeals for the District of Columbia Circuit, she will do so facing the direct and voiced opposition of more than 110 Republican members of Congress.
Late last week, a group of 113 congressional Republicans filed an amicus brief in English’s case, declaring their support for Trump’s authority to name Mulvaney as the interim CFPB director.
At the core of the question of who’s supposed to be in charge of the CFPB is whether the agency is subject to the Federal Vacancies Reform Act, which grants the president the authority to name temporary replacements for agency directors.
English and her Democratic supporters argue that a provision in Dodd-Frank makes English the interim director because Cordray names her deputy director just before he resigned. According to English and the Democrats, the deputy director of the CFPB is supposed to serve as director in the absence of the director.
But the 113 Republicans claim that Trump has the authority to name a temporary replacement under the Federal Vacancies Reform Act.
“The Federal Vacancies Reform Act has been U.S. law for 20 years,” Senate Banking Committee Chairman Mike Crapo, R-Idaho, said in a statement issued in conjunction with the Republicans filing the amicus brief.
“If Congress wanted to supersede the Vacancies Reform Act, and prevent a president from appointing an Acting Director, it could have done so in the text of Dodd-Frank. But, Congress chose not to,” Crapo continued.
“I have long argued that the CFPB lacks sufficient accountability, but Director Mulvaney has so far made the Bureau more accountable and transparent, while also fulfilling its mission of protecting consumers,” Crapo added. “It is in the public’s best interest for him to serve until the nomination and confirmation of a permanent Director.”
Crapo is joined by 37 other senators and 75 members of the House of Representatives in filing the brief, including many prominent members of both houses like Senate Majority Leader Mitch McConnell, R-Kentucky, Sens. Bob Corker, R-Tenn., Ted Cruz, R-Texas, Orrin Hatch, R-Utah, and Marco Rubio, R-Florida, along with House Financial Services Committee Chairman Rep. Jeb Hensarling, R-Texas, Reps. Trey Gowdy, R-S.C., Patrick McHenry, R-N.C., and Ed Royce, R-Calif.
“For nearly two decades, the president has had the authority to appoint an interim director under the Federal Vacancies Act,” Hensarling said in a statement.
“It’s what the Justice Department says, and it’s what the CFPB’s own General Counsel - an Obama appointee - says. Director Mulvaney continues to be an outstanding Acting Director as he restores true and meaningful accountability and due process of law to an agency that desperately needs it,” Hensarling added. “After all, the problem with the CFPB isn’t who’s running it, the problem is the CFPB and its creator, the Dodd-Frank Act.”
The Republicans’ brief isn’t terribly kind to English’s argument either.
From the brief:
This case comes to the Court in false garb. In the telling of Plaintiff-Appellant Leandra English and her supporting amici, the dispute centers on a fundamental clash between the exercise of presidential power (the President’s selection of Mick Mulvaney to serve as Acting Director of the Consumer Financial Protection Bureau) and congressional prerogatives (which would have English serve in that position). But in truth it is English’s argument—which would dispense with the requirements of the Federal Vacancies Reform Act —that threatens Congress’s prerogatives by upsetting the Constitution’s finely calibrated balance between the President’s appointment power and Congress’s role in that process, which the FVRA was designed to protect. While English acknowledges the FVRA’s purpose, her argument would lightly cast the Act aside in favor of a regime that would allow an agency official who was never selected by (and apparently cannot be removed by) the President, and who was never confirmed by the Senate, to function as the head of an Executive agency for an indefinite period of years.
The Republicans continue:
Finally, given that both Congress and the Executive Branch have recognized Mulvaney as the Acting CFPB Director, granting preliminary relief to English would impair the public’s interest in consistent and predictable governance and would slight Congress’s authority as an independent branch to resolve constitutional questions. A preliminary injunction against Mulvaney would have significant practical and constitutional implications for the operation of the federal government and would risk significant instability in the CFPB’s operations by opening the door to a series of leadership changes in quick succession.
The brief was submitted by the following Republicans:
Senator Mike Crapo (R-Idaho)
Representative Jeb Hensarling (R-Texas)
Senator John Barrasso (R-Wyoming)
Senator Roy Blunt (R-Missouri)
Senator John Boozman (R-Arkansas)
Senator Shelley Moore Capito (R-West Virginia)
Senator Bill Cassidy (R-Louisiana)
Senator Susan Collins (R-Maine)
Senator Bob Corker (R-Tennessee)
Senator John Cornyn (R-Texas)
Senator Tom Cotton (R-Arkansas)
Senator Ted Cruz (R-Texas)
Senator Steve Daines (R-Montana)
Senator Mike Enzi (R-Wyoming)
Senator Lindsey Graham (R-South Carolina)
Senator Orrin Hatch (R-Utah)
Senator Dean Heller (R-Nevada)
Senator John Hoeven (R-North Dakota)
Senator Jim Inhofe (R-Oklahoma)
Senator Johnny Isakson (R-Georgia)
Senator Ron Johnson (R-Wisconsin)
Senator John Kennedy (R-Louisiana)
Senator James Lankford (R-Oklahoma)
Senator Mike Lee (R-Utah)
Senator Mitch McConnell (R-Kentucky)
Senator Jerry Moran (R-Kansas)
Senator David Perdue (R-Georgia)
Senator Rob Portman (R-Ohio)
Senator Jim Risch (R-Idaho)
Senator Pat Roberts (R-Kansas)
Senator M. Michael Rounds (R-South Dakota)
Senator Marco Rubio (R-Florida)
Senator Ben Sasse (R-Nebraska)
Senator Tim Scott (R-South Carolina)
Senator Richard Shelby (R-Alabama)
Senator Dan Sullivan (R-Alaska)
Senator Thom Tillis (R-North Carolina)
Senator Pat Toomey (R-Pennsylvania)
Senator Roger Wicker (R-Mississippi)
Representative Jodey Arrington (R-Texas)
Representative Brian Babin (R-Texas)
Representative Andy Barr (R-Kentucky)
Representative Joe Barton (R-Texas)
Representative Diane Black (R-Tennessee)
Representative Marsha Blackburn (R-Tennessee)
Representative Dave Brat (R-Virginia)
Representative Ted Budd (R-North Carolina)
Representative Michael C. Burgess, M.D. (R-Texas)
Representative Bradley Byrne (R-Alabama)
Representative Buddy Carter (R-Georgia)
Representative Chris Collins (R-New York)
Representative Paul Cook (R-California)
Representative Warren Davidson (R-Ohio)
Representative Ron DeSantis (R-Florida)
Representative Scott DesJarlais (R-Tennessee)
Representative Daniel Donovan (R-New York)
Representative Sean Duffy (R-Wisconsin)
Representative Jeff Duncan (R-South Carolina)
Representative Tom Emmer (R-Minnesota)
Representative John Faso (R-New York)
Representative Matt Gaetz (R-Florida)
Representative Bob Gibbs (R-Ohio)
Representative Bob Goodlatte (R-Virginia)
Representative Paul A. Gosar D.D.S. (R-Arizona)
Representative Trey Gowdy (R-South Carolina)
Representative Sam Graves (R-Missouri)
Representative Tom Graves (R-Georgia)
Representative H. Morgan Griffith (R-Virginia)
Representative Karen Handel (R-Georgia)
Representative Andy Harris, M.D. (R-Maryland)
Representative Jody Hice (R-Georgia)
Representative French Hill (R-Arkansas)
Representative Trey Hollingsworth (R-Indiana)
Representative Bill Huizenga (R-Michigan)
Representative Randy Hultgren (R-Illinois)
Representative Duncan D. Hunter (R-California)
Representative Mike Kelly (R-Pennsylvania)
Representative David Kustoff (R-Tennessee)
Representative Raúl Labrador (R-Idaho)
Representative Barry Loudermilk (R-Georgia)
Representative Mia Love (R-Utah)
Representative Frank Lucas (R-Oklahoma)
Representative Blaine Luetkemeyer (R-Missouri)
Representative Tom MacArthur (R-New Jersey)
Representative Patrick McHenry (R-North Carolina)
Representative David B. McKinley, P.E. (R-West Virginia)
Representative Mark Meadows (R-North Carolina)
Representative Luke Messer (R-Indiana)
Representative Alex Mooney (R-West Virginia)
Representative Ralph Norman (R-South Carolina)
Representative Pete Olson (R-Texas)
Representative Steve Pearce (R-New Mexico)
Representative Scott Perry (R-Pennsylvania)
Representative Robert Pittenger (R-North Carolina)
Representative Bruce Poliquin (R-Maine)
Representative Bill Posey (R-Florida)
Representative John Ratcliffe (R-Texas)
Representative David P. Roe, M.D. (R-Tennessee)
Representative Todd Rokita (R-Indiana)
Representative Dennis Ross (R-Florida)
Representative Keith Rothfus (R-Pennsylvania)
Representative Ed Royce (R-California)
Representative John Shimkus (R-Illinois)
Representative Adrian Smith (R-Nebraska)
Representative Steve Stivers (R-Ohio)
Representative Claudia Tenney (R-New York)
Representative Scott Tipton (R-Colorado)
Representative David Trott (R-Michigan)
Representative Ann Wagner (R-Missouri)
Representative Roger Williams (R-Texas)
Representative Steve Womack (R-Arkansas)
Representative Ted Yoho (R-Florida)
Representative Lee Zeldin (R-New York)
To read the Republicans’ brief in full, click here.