WASHINGTON — Over 100 Republican lawmakers filed a legal brief Friday backing Mick Mulvaney in the lawsuit challenging his appointment as acting head of the Consumer Financial Protection Bureau.
The 38 senators and 75 House members — led by Senate Banking Committee Chairman Mike Crapo, R-Idaho, and House Financial Services Committee Chairman Jeb Hensarling, R-Texas — said President Trump had legal standing to appoint Mulvaney despite deputy CFPB Director Leandra English's claim that she was the rightful acting director.
A federal judge denied English's claim that she automatically became head of the agency after the departure of former CFPB Director Richard Cordray. The case is now being heard at the U.S. Court of Appeals for the D.C. Circuit.
English argues that the Dodd-Frank Act elevates the deputy director to head the agency, but the Trump administration has cited the Federal Vacancies Act as providing the authority to install Mulvaney as the acting director.
"It is English’s argument — which would dispense with the requirements of the Federal Vacancies Reform Act — that threatens Congress’s prerogatives by upsetting the Constitution’s finely calibrated balance between the President’s appointment power and Congress’s role in that process,” Republican lawmakers said in their amicus brief.
In their brief, they noted that the CFPB’s own general counsel came to the conclusion that Trump could pick Mulvaney to lead the bureau.
“Further, from the first day of his tenure, Acting Director Mulvaney has enjoyed the recognition of CFPB staff, consistent with the direction of the CFPB’s General Counsel that ‘all Bureau personnel act consistently with the understanding that Director Mulvaney is the Acting Director of the CFPB,’” the brief said.
In a joint press release with Hensarling, Crapo said the "Federal Vacancies Reform Act has been U.S. law for 20 years.”
“If Congress wanted to supersede the Vacancies Reform Act, and prevent a president from appointing an Acting Director, it could have done so in the text of Dodd-Frank,” he said.
Hensarling said the overwhelming consensus supports Mulvaney's appointment.
“It’s what the Justice Department says, and it’s what the CFPB’s own General Counsel — an Obama appointee — says,” Hensarling said in the same press release.
He added that “the problem with the CFPB isn’t who’s running it, the problem is the CFPB and its creator, the Dodd-Frank Act.”