This column by ACRU General Counsel Ken Klukowski was published November 26, 2017 by Breitbart.
WASHINGTON, DC—Obama holdover Leandra English is claiming to be the acting head of the powerful Consumer Financial Protection Bureau (CFPB) and, on Sunday, filed a lawsuit against the president of the United States, seeking an emergency court order declaring her the lawful director and requiring everyone to treat her as such.
The Dodd-Frank Act vastly expands the power of the federal government over the financial services industry to the same extent as, if not greater than, the Affordable Care Act (aka, Obamacare) does over health care.
Part of this sweeping expansion is the CFPB, which is so independent of the normal separation of powers of the Constitution’s three branches—for example, it does not require congressional funding each year because it extracts resources through the Federal Reserve—that it is currently the defendant in multiple lawsuits arguing that the CFPB is unconstitutional.
Hard-left Sen. Elizabeth Warren (D-MA) was the mastermind behind the statute when she was a Harvard law professor in the private sector and was President Barack Obama’s choice to lead the CFPB. When Republicans blocked Warren, Obama nominated Richard Cordray, who was later confirmed by the Senate mostly along party lines votes from Democrats.
Cordray resigned last Friday, reportedly to run for governor of Ohio. Shortly before his resignation took effect, he promoted his chief of staff, English, to deputy director of CFPB so that, as the second-in-command, she would become the acting director of the potent agency for however many months it took to nominate and confirm a new director.
The Office of Legal Counsel (OLC) at the U.S. Department of Justice issued a memo to White House Counsel Don McGahn on November 25, saying that, under the Federal Vacancies Reform Act, President Donald Trump has the authority to name his own acting director of CFPB to run the agency while the president nominates someone as the permanent head and once the Senate confirms that choice.
The chief counsel at CFPB agreed with that assessment, writing a legal memo concurring with OLC.
And the president named his choice: Mick Mulveny, the powerful director of the White House Office of Management and Budget, to oversee CFPB while the president seeks a permanent leader.
English sued in a rare Sunday lawsuit, throwing the agency into turmoil as to who is in command of it on Monday and through the upcoming first week without Cordray. Her complaint, filed in federal district court in Washington, DC, argues that Dodd-Frank explicitly provides that the director of CFPB can appoint a deputy director, that the deputy becomes the acting director upon the director’s resignation, and that therefore she has lawful control over this formidable agency, over the express objections of the president of the United States.
Given that the agency must be open for business the very next day, English also requested a temporary restraining order (TRO), a very rare measure asking the federal judge in charge to order the entire federal government immediately to accept English as the head of CFPB for however many days it takes the court to receive legal briefs and hear arguments in this case.
Such TROs often expire after ten days, usually requiring a federal court to decide during that window how to proceed in the case.
The case is English v. Trump, No. 1:17-cv-2534 in the U.S. District Court for the District of Columbia.