As a parting gift, and in an attempt to stymie the president, Cordray suddenly announced last Friday that he would be leaving at the end of the day and that he was promoting Leandra English—who is said to be close to Warren—to the position of deputy director, replacing acting Deputy Director David Silberman, who had been serving in that capacity for two years. Cordray said she would assume the position of acting director upon his departure.
In doing so, Cordray cited a position in the Dodd-Frank Act that states 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.
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In this case, though, there is no need to address these knotty questions because the president is on firm legal ground by naming Mulvaney as acting director of the bureau.
The Federal Vacancies Reform Act of 1998 provides—with limited exceptions not applicable here—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.
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As the Office of Legal Counsel memo states:
CFPB Deputy Director Is Challenging the President’s Authority. Here’s Why Her Arguments Are Flawed.
In doing so, Cordray cited a position in the Dodd-Frank Act that states 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.
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In this case, though, there is no need to address these knotty questions because the president is on firm legal ground by naming Mulvaney as acting director of the bureau.
The Federal Vacancies Reform Act of 1998 provides—with limited exceptions not applicable here—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.
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As the Office of Legal Counsel memo states:
If Congress had intended to make the Vacancies Reform Act unavailable whenever another statute provided an alternative mechanism for acting service, then it would have said so. It would not have provided that the Vacancies Reform Act ceases to be the ‘exclusive means’ when another statute applies.
CFPB Deputy Director Is Challenging the President’s Authority. Here’s Why Her Arguments Are Flawed.