MONDAY SHOWDOWN – How Next CFPB Director Can Be Determined

Updated on

: On Friday afternoon, Richard Cordray – who had been appointed by President Obama after Senate confirmation to serve as Director of the Consumer Financial Protection Bureau – suddenly announced that he would leave his position a week earlier than expected, and appointed his chief of staff, Leandra English, as the agency’s deputy director.

Consumer Financial Protection Board

Under the 2010 Dodd-Frank Act, which established the regulatory agency, the deputy director then apparently serves as acting director in the absence of a permanent leader.

But President Trump, recognizing that it might take months to have his own nominee confirmed as permanent director, retaliated by saying that his budget director, Mick Mulvaney, who once characterized the consumer protection bureau as a “sad, sick joke,” would be running the agency, as well as retaining his current position as head of the Office of Management and Budget. Trump cites the Federal Vacancies Reform Act of 1998 as his authority to make this conflicting interim appointment.

So on Monday morning two different appointees may present themselves to head the same agency until a permanent director is confirmed by the Senate.

While the dispute might well be settled by behind-the-scenes negotiations, or possibly even by who first occupies the physical office, there are several legal ways in which the dispute might be resolved, says public interest law professor John Banzhaf.

One classic way, just used recently, would be to wait until one person purported to take some official agency action, and then challenge that legal action in court as unwarranted because the person was allegedly not lawfully in office. This would presumably necessitate a judicial determination as to who has the better legal claim to the office.

Another more problematic approach would be for whichever person is not paid a salary to bring a legal action to get paid, which would also force the court to address the same legal issue.

But fortunately there is an ancient English common law writ which can be used to resolve the matter quickly in court, says Banzhaf, whose law students successfully used another ancient writ to force former Vice President Spiro T. Agnew to return the money he had unlawfully taken in bribes.

It is called the writ of Quo Warranto, which the Supreme Court said “came to be used as a means of determining which of two claimants was entitled to an office.”

The modern statutory version, D.C. Code § 16-3501, permits either the Attorney General or the United States Attorney to bring the writ to compel someone unlawfully in office to step down.

Since both were appointed by President Trump, they would likely use the writ only if English, and not Mulvaney, seems to be safely ensconced in the office. If the Republican nominee seems to be in charge, they presumably would not apply to the court for a change.

Fortunately, in such a situation, D.C. Code § 16-3503 permits any “person interested” to “apply to the court” “for leave to have the writ issued.” So if English were shut out, she presumably could seek to have the writ issued.

Failing that, others who could demonstrate sufficient interest might likewise be able to do so.

For example, years ago, Prof. Banzhaf persuaded a judge to order the then attorney general to seek the appointment of a Special Prosecutor. He also initiated a legal action in the name of the United States of America regarding Barney Frank.

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