The U.S. Chamber of Commerce said Monday that an attempt to oust Mick Mulvaney as acting director of the Consumer Financial Protection Bureau would raise "grave questions" about the constitutionality of the consumer agency.
The Chamber wrote in an amicus brief that CFPB Deputy Director Leandra English's legal effort to have Mulvaney removed from his job running the bureau would represent "an unprecedented limitation" on the president's constitutional authority to appoint and remove the heads of federal agencies.
"An interpretation of the Dodd-Frank Act that would prevent the president from designating the acting director of the bureau after a director’s resignation would accordingly raise serious constitutional concerns," Andrew Pincus, the Chamber's lawyer and a partner at Mayer Brown, wrote in a 38-page brief filed with the U.S. District Court for the District of Columbia.
Mulvaney was named acting director of the CFPB by President Trump on Nov. 24, just hours after former CFPB Director Richard Cordray had tapped English to lead the agency on an interim basis. English has claimed she is the rightful head of the CFPB in the absence of a Senate-confirmed director.
English sued Trump and Mulvaney on Nov. 29, but a district court judge refused to issue an immediate temporary restraining order to Mulvaney, thereby validating his position. But a final ruling in the case is still pending; a hearing is set for Friday.
President Trump's appointment and removal powers are central elements to the case, Pincus wrote.
Under Dodd-Frank, which created the CFPB, the law says the job of director falls to the deputy director in the "absence or unavailability" of the director. Democrats interpret that to mean English is the lawful head until Trump nominates a successor who is confirmed by the Senate.
The Chamber and Republicans reject that interpretation. They claim that the president has the authority under the Federal Vacancies Report Act of 1998 to appoint a successor to Cordray, whose resignation left the CFPB's director post vacant.
"The provision uses the words 'absent' and 'unavailable,' but not the terms 'vacant,' 'dies,' or 'resigns' — which are the terms that Congress consistently employs when it wishes to designate an official to serve in an 'acting' capacity for a position that has become vacant," Pincus wrote in the brief.