Constitution supports neither choice for bureau

Who should be in charge of the Consumer Financial Protection Bureau (CFPB)? Richard Cordray’s resignation as director of the agency has caused a stir in Washington.

Cordray unilaterally appointed Leandra English to serve as his deputy, believing that under the Dodd-Frank Act she would head the agency. President Trump, meanwhile, relied on a different federal statute, the Federal Vacancies Act, to block Cordray’s action by installing Mick Mulvaney as temporary head of CFPB.

So who is in charge? Better yet, what does the Constitution have to say about this predicament?

For constitutional purposes, Cordray’s appointment of English as his deputy was proper. Cordray, having himself been nominated by the president and confirmed by the Senate, was a department head who was granted authority by Congress under Article II of the Constitution to appoint “inferior” officers, like English.

Mulvaney is presently the head of Trump’s Office of Management and Budget (OMB). As such, he was nominated by the President (Trump) and confirmed by the Senate. Mulvaney is what the Supreme Court calls a “principal” officer.

The Vacancies Act and Dodd-Frank are somewhat at odds over who takes charge. The Vacancies Act, in a nutshell, provides that “vacant” offices presumably fall (temporarily) under the control of the “first assistants” in the affected agencies, which seems to mean English. She would then, under this provision in the Vacancies Act, serve until Trump’s replacement was confirmed by the Senate.

Dodd-Frank arguably dovetails with this, stating that the director’s deputy (now English) shall “serve as acting director in the absence or unavailability of the director” and because the Vacancies Act claims to yield to a contradictory law, a statutory argument can be made that English must be the new head of the agency.

If it were only that easy. The Vacancies Act additionally states the president “may” unilaterally appoint someone else, either a different senior official within CFPB or (as relevant here) a “person who serves in an office for which appointment is required to be made by the president, by and with the advice and consent of the Senate.” Using the latter, the president would be effectively granting one of his principal officers (Mulvaney) additional duties. If constitutional, this proviso plainly supports President Trump.

Does the Constitution have anything to say about all this? It does, but the answer does not support either candidate. Instead, it directs, I believe, that neither Mulvaney nor English may take charge of CFPB. Here’s why. English is an inferior officer who seeks to act like Cordray, a former principal officer (nominated by the president and confirmed by the Senate). The Supreme Court has not decided whether this is acceptable, but Justice David Souter, in a concurring opinion rendered a quarter-century ago, stated that it is not: “[ The Constitution] forbids the creation of ... a single office that combines inferior- and principal-officer roles.” An inferior officer cannot assume a principal office, even temporarily. Justice Clarence Thomas reiterated this precise point earlier this year in a different case.

Mulvaney, meanwhile, is already a principal officer and thereby avoids the problem described by Justice Souter. Still, there is strong precedent suggesting that a principal officer (such as Mulvaney) may assume the role of another principal officer only when the additional duties are “germane” to his present obligations. “[ T]aking on the nongermane duties of [another office] would amount to assuming a new [office],” Justices Antonin Scalia and Thomas have explained, “and the appointment to that office would have to comply with the strictures of [the Constitution].” A president therefore cannot detail one principal officer, like Mulvaney, to perform the duties of another principal office (Cordray’s former position) unless the duties are “germane” to the principal officer’s present position.

Scalia’s point, if correct (and I think it is), likely precludes President Trump’s appointment of Mulvaney to take charge of CFPB. It is not readily apparent to me that the two agencies share a commonality.

So where does that, constitutionally speaking, leave us? Constitutionally speaking, President Trump is in control, so long as he appoints a principal officer whose present duties somehow relate to those performed by CFPB. Who qualifies might itself be a tricky problem.