The Dodd-Frank Act of 2010, which established the CFPB, calls on the agency’s deputy director to serve as acting director until the president appoints and the Senate confirms a permanent replacement.
But senior administration officials said Saturday that the Federal Vacancies Act of 1998 empowers Trump to override the CFPB’s line of succession with his own pick. The officials spoke to reporters during a Saturday call under the condition of anonymity.
The Vacancies Act allows the president to appoint any Senate-confirmed officer as the acting director or secretary of a federal agency or department.
Legal experts say it’s unclear whether English or Mulvaney is the rightful director of the CFPB, but senior administration officials said years of precedent supported Trump’s decision.
One senior administration official said the CFPB’s line of succession “continues to be available as a default," but that “the Vacancies Act is also there as a way that the president can supersede the way those agency statutes work.”
“The common objections that you hear in these various blog posts online is that ‘Oh, the CFPB statue said the CFPB deputy director shall serve as the director,' ” said the official. “That’s clear in lots of these statues that the Vacancies Act trumps.”
The official said the White House consulted with the Office of Legal Counsel before nominating Mulvaney, and the office will likely release a brief supporting Trump’s move within the day.
The official also said the White House doesn’t expect any legal issues with Mulvaney’s appointment, and didn’t expect it to derail the agency’s work.
“I know it makes it a better story if things are unpleasant and there’s a clash of two directors, but I don’t think it’s [at] all clear that’s going to happen,” the official said. “I think there’s a very good chance that Director Mulvaney will come in on Monday morning and that will be end of things.”