‘Pay no attention to the lady who brought no doughnuts…’

A South Carolinian features prominently in probably the oddest story of the day out of Washington:

As a Republican congressman, Mick Mulvaney called the Consumer Financial Protection Bureau a “joke” and said he wished it didn’t exist. On Monday, Mulvaney showed up at the agency’s D.C. offices with a bag of doughnuts and a new title: boss.

Mick Mulvaney

Mick Mulvaney

But after a frantic weekend of political and legal posturing, Mulvaney’s arrival represented a new escalation of tensions over who ultimately will lead the agency. A day earlier, Leandra English filed suit claiming she is the “rightful acting director.”

Leadership of the agency was thrown into doubt last Friday when Richard Cordray stepped down as CFPB director and said his chief of staff, English, would temporarily replace him. A few hours later, Trump named Mulvaney, the Office of Management and Budget director and a longtime critic of the CFPB, to the job….

Mulvaney and English even sent out dueling email messages to CFPB’s likely befuddled 1,600 employees. English said in her message, “I hope that everyone had a great Thanksgiving. With Thanksgiving in mind, I wanted to take a moment to share my gratitude to all of you for your service.” English ended the note with her claimed title: “Acting Director.”

Shortly after, Mulvaney, already in the director’s office, according to photos taken by his staff, responded with his own email.

“It has come to my attention that Ms. English has reached out to many of you this morning via email in an attempt to exercise certain duties of the Acting Director. This is unfortunate but, in the atmosphere of the day, probably not unexpected,” he said.

“Please disregard any instructions you receive from Ms. English in her presumed capacity as acting director.”…

I hope the Post will forgive that long excerpt, but there was no one graf that fully expressed the absurdity of the situation.

Who’s right? I dunno. But hey, at least Mulvaney brought doughnuts. What’d you bring, Ms. English?…

21 thoughts on “‘Pay no attention to the lady who brought no doughnuts…’

  1. Bryan Caskey

    If you’re scoring at home, Ms. English is fighting against:

    1. The Chief Executive appointing the head of a single-member director of an agency.
    2. The DOJ concurring in the ability of the Chief Executive’s ability to do so.
    3. The general counsel for the CFPB concurring with the Chief Executive’s ability to do so.
    4. The DC Circuit Court of Appeals, who writing in PHH v. CFPB that “In this case, the single-Director structure of the CFPB represents a gross departure from settled historical practice. Never before has an independent agency exercising substantial executive authority been headed by just one person….We therefore hold that the CFPB is unconstitutionally structured. ”
    5. A guy who brought doughnuts to his first day on the job.

    It’s really quite something for those of us who are interested in the legal and constitutional issues. If you have time, go read the PHH case. It’s really amazing. Well, I think it is, anyway. 🙂

    We talked about the PHH case at length at the last CLE I went to. It looks like Dodd-Frank may be modified to have the CFPB director a normal director or it will have to be run by a commission, like the other independent agencies.

    1. Brad Warthen Post author

      I heard on the radio that it’s a case of dueling statutes, when you’re talking about an INTERIM director, and that the president’s authority is clearer when it comes to appointing a permanent director. So maybe he should do that.

      is that not correct?

      1. Bryan Caskey

        There are two competing statutes, but the specific one in Dodd-Frank (12 U.S.C. 5491(b)(5) says the Deputy Director shall “serve as the Acting Director in the absence or unavailability of the Director.”

        The Federal Vacancies Reform Act of 1998 (5 U.S.C. 3345-3349d) provides that the President with the authority for “temporarily authorizing an acting official to perform the functions and duties” of an officer of an Executive agency whose appointment “is required to be made by the President, by and with the advice and consent of the Senate”.

        The FVRA is the “exclusive” means unless there is another statue that expressly designates such an officer. Accordingly, the Dodd-Frank provision doesn’t displace or supersede the FVRA statute. They both work together in that the specific statute is what happens until the President uses his authority under the FVRA. There’s actually a specific federal case that supports this from 2016 in the 9th Circuit.

        Also, of note, the language “absence or unavailability” doesn’t also necessary imply when the office is “vacant”, which is what we have here. The Director isn’t unavailable or absent. The office is vacant because there’s no one there at all. He resigned.

        To me, it’s a bit of a jerk move by Courdray to resign, with no notice to the White House, and then just before resigning, he names a Deputy (there hadn’t been a deputy since 8/15) to succeed him. The way he should have done it was to give the White House notice he was going to quit so there could be an orderly process.

        However, Courdray wants to run for Governor in Ohio, so this is a way he can thumb his nose (ineffectively, at that) at the White House and up his street cred with people who don’t like the President.

        1. Brad Warthen Post author

          “To me, it’s a bit of a jerk move by Courdray to resign, with no notice to the White House, and then just before resigning, he names a Deputy (there hadn’t been a deputy since 8/15) to succeed him. The way he should have done it was to give the White House notice he was going to quit so there could be an orderly process.”

          From what you say, I agree…

          1. Brad Warthen Post author

            There’s no sense in deliberately CAUSING conflicts with this administration. Trump will cause enough of them on his own. He doesn’t need help from anyone on that score…

              1. Brad Warthen

                Nah, that’s not shocking. What’s shocking is that I’m not sure that I’d ever heard of this agency before today.

                As with most finance- or sports-related topics, my blanket defense is, “Not my beat, man…”

                I sorta know what Dodd-Frank is, just as I know what American football is, but don’t ask me to ‘splain either one…

          1. Brad Warthen Post author

            Then why didn’t you SAY so? I’m no slave to newspaper style, but this is an instance in which following it leads to clarity: AP style would be “August 2015.”

            Also, while AP loosened up and started allowing “over” under such circumstances, when I DO obey style, I’m Old School: You meant “for more than two years…”

        2. bud

          To me, it’s a bit of a jerk move by Courdray to resign, with no notice to the White House, and then just before resigning, he names a Deputy (there hadn’t been a deputy since 8/15) to succeed him.

          I don’t think this move is political. I believe Courdray is just trying to do what he can to protect consumers. It’s a lost cost but at least he’s trying.

    2. bud

      There’s the legal argument. Which frankly I don’t give a damn about since they amount to a bunch of legalize nonsense. And conservatives don’t give a damn about it either. And the ethical argument. We need a strong consumer protection agency. Mulvaney is the fox in the hen house. So let’s try to run out the clock as best we can for the sake of the country.

  2. JesseS

    Can you really call Mulvaney a South Carolinian? He was born in Alexandria, grew up in Charlotte, and moved to Indian Land for a lower tax rate. Always seemed like more of a political carpetbagger to me. Then again he was my Rep so perhaps I’m just trying to disassociate myself.

  3. Bart

    If it is JesseS’s fault, then he must be banned from this blog by all means necessary. Someone must take responsibility for Mulvaney being in Washington and JesseS is the best candidate available, right? 🙂

  4. Phillip

    From what I read, the biggest outrage (and most worrisome sign about Mulvaney’s Southern bona fides) is that he brought Dunkin Donuts, not Krispy Kremes, to distribute at the CFPB.

    1. Brad Warthen Post author

      Yes, I had that same thought! But since I can’t eat doughnuts, I felt like I might not have full mastery of the nuances, so I didn’t mention it…

  5. Mike

    Is it even legal for one person to hold two distinct federal offices simultaneously? I had thought that was prohibited? Is it acceptable because Mick is only the acting director but would be ineligible to be the confirmed director? Or is it because his position as the OMB director is not a Senate-confirmed position?

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