The kerfuffle at the Consumer Financial Protection Bureau, or CFPB—an often overlooked consumer watchdog agency created during the Obama administration—is a perfect illustration of how the administrative state has become a menace to constitutional government.
The CFPB re-emerged as a focus of controversy last week when its director, Richard Cordray, stepped down to run for governor in Ohio. President Donald Trump then nominated Office of Management and Budget Director Mick Mulvaney, a longtime critic of the CFPB, to replace Cordray temporarily until a new permanent director could be selected.
The problem was that Cordray had picked his own successor, Leandra English, to serve out the rest of his term. He cited a provision of the Dodd-Frank Act that says the deputy director “shall … serve as the acting director in the absence or unavailability of the director” until such time as the Senate confirms a new director.
Mulvaney arrived at the CFPB on Monday and assumed control as acting director. English responded by suing him and the president.
Sen. Elizabeth Warren, D-Mass., who has been one of the CFPB’s key champions, essentially called Trump’s Mulvaney appointment lawlessand claimed that the agency has the right to choose its own director under the Dodd-Frank Act.
But this isn’t so. Heritage Foundation’s John Malcolm writes that the Federal Vacancies Reform Act of 1998 ensures that the president “can designate any Senate-confirmed official (which would include Mulvaney) to perform the duties of a vacant federal office in an acting capacity for a statutorily limited period of time.”
Not only that, but preventing the president from determining his own appointment, in this case, would likely violate Article II of the Constitution, which gives the president ultimate authority to...
