Thursday, November 30, 2017

A big piece of the federal government may be imperiled by the fight over who runs the Consumer Financial Protection Bureau.

AZBlueMeanie at Blog for Arizona warns that The Federal Vacancies Reform Act of 1998 is about to become a big effin’ deal. That’s because there now are two competing claimants to the acting directorship of the Consumer Financial Protection Bureau — and two competing statutes. The Blue Meanie sites several legal sources. He treats the various plots and subplots as a Game of Thrones. Snippets from those sources follow.

The legal question turns on whether the FVRA gives the president an option for appointing its head — i.e., the deputy or someone else — or whether the text of Dodd-Frank forecloses that option. The FVRA says it is the “exclusive means” of filling a position, except if another statute specifies a particular acting successor. English’s proponents argue that Dodd-Frank does precisely that. Better yet, in doing so it uses the word “shall,” not “may.” That word “shall” is significant, legal scholars [say].

On Tuesday, a district court judge declined to grant a temporary restraining order against Mulvaney’s claim to the CFPB throne. That does not settle the merits of the case, of course. And in the meantime, other subplots abound.

One is that the judge in the case, Timothy Kelly, was appointed by Trump and only took the bench in September. He was quickly attacked on social media, in language that had an unsettling echo of Trump’s own much-derided attack on “so-called” judges.

Another is that new acting director Mulvaney already has a full-time job as the president’s budget director, at a time when budget policy is rather salient. Funding for the federal government expires on Dec. 8. Hopes for a bipartisan spending plan keep sinking, further complicated by pending tax cuts that seem likely to add substantially to the federal deficit and national debt. One might imagine that this might require a full-time budget director.

Mulvaney says he will work three days each week at OMB and three at CFPB — which itself adds a new subplot. After all, Dodd-Frank says that the deputy director shall serve as acting director “in the absence or unavailability of the Director.” Does that put English in charge three days a week?

And yet another plot line involves the FVRA itself. Those appointed under its auspices can only serve 300 days at the start of an administration – right about now. Without a new nominee in the pipeline — and the Trump administration has been notoriously slow in putting people forward – any actions taken by an acting official after the 300 days are up have no legal force. While this won’t affect Mulvaney’s seat at CFPB for a while, there are enough long-term “acting” officials in place that political scientist Terry Sullivan says the FVRA could soon trigger an epic “changing of the guard” all across the bureaucracy.

The Blue Meanie concludes:

In other words, there soon could be hundreds of federal departments rendered powerless to act because the Trump administration has failed, either through sheer incompetence or malevolent design, to nominate department heads for confirmation by the U.S. Senate. This has the potential to cripple the efficient functioning of the U.S. government.

I am sure he chooses his words carefully, but “efficient”?

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