My first question regarding the showdown at the Consumer Financial Protection Bureau is this:

If you are a CFPB staffer who quickly took Acting Director Mulvaney’s offer of a Dunkin’ Donut and trundled up to his office to partake, will you go on a Democrat black list? Will you find your career as a beltway bureaucrat from now on strangely stymied over and over again by the opaque, clutching hand of the administrative state of which you, until recently, were a proud member?

How does a CFRP staffer accept a donut from the man who called your beloved agency a “sick joke”? How ingratiatingly do you smile and how eagerly do you bite down on the proverbial apple, if you will allow the mixed (up) metaphor?

Because whether you like it or not, you treasonous muncher of sweets, you are and have been in the center of a grand struggle over what the administrative state’s reaches are or should be. And most likely you are perfectly aware of the struggle which has been waged since the CFPB was brought into existence in 2010.

The Consumer Financial Protection Bureau is Senator Elizabeth Warren’s brainchild. She did the wonky academic groundwork as a Harvard Law professor, publishing her work around 2007, on the cusp of the financial meltdown and subsequent Great Recession. Senator Warren – as an academic at Harvard, as a member of the Congressional Oversight Panel that was in charge of keeping track of the Troubled Asset Relief Program (or TARP), and as a senator, has been pushing for and getting increased regulation of the financial industry. It’s her goal and her baby.

Who has been fiercely critical of Mulvaney whose appointment as an Acting Director of the CFPB has been public news for a few weeks now – the White House knew that ex-CFRP Director Richard Cordray was going to pull a fast one at any time – and which spurned Cordray to do what he did last Friday?

Senator Warren.

Who did recently appointed Deputy Director Leandra English (until Friday she was Cordray’s Chief of Staff at the CFPB) go see on Monday, along with, naturally, Chuck Schumer?

Senator Warren.

The CFPB was put together in a way that was designed to make it as independent of any Congressional oversight as constitutionally possible. Did I say constitutionally? Sorry, sorry. There is at least one case winding it’s way upward that is based on the complaint that the CFPB is not constitutional, given the way it’s Director has broad sweeping powers not typical of an agency.

The specific issue is who has the authority to appoint an Acting Director at the CFPB. There is a conflict between Dodd-Frank and 1998’s Federal Vacancies Reform Act. But both White House counsel and the CFPB’s own legal counsel – General Counsel Mary McLeod – agree that the president has the authority and that the Vacancies Act takes precedence over Dodd-Frank, in this matter. McLeod has published a memo in which she considers the implications of both pieces of legislation and concludes that:

… the statutory language, legislative history, precedent from the Office of Legal Counsel at the Department of Justice and case law all point to the conclusion that the President may use the Vacancies Reform Act to designate an acting official, even when there is a succession statute under which another official may serve as acting.

On the other hand, contrast General Counsel McLeod’s compelling clarity with Deputy Director (and supposedly Acting Director if you take the Democrat side in this) Leandra English’s lawsuit filed on Sunday:

Ms. English has a clear entitlement to the position of acting director of the CFPB.

Interesting. Leandra English is entitled not necessarily authorized to be Acting Director. Even her own damn lawyers know full well this a political move, not really a constitutional one, although they wish it were. In other words, English should be Acting Director because her heart is in the right place; seated beside her mentor and master Senator Warren.

Should the White House prevail in this appointment tussle over an acting director at an administrative agency, this will mark a key victory in their attempt to roll back the administrative state. This is about way more than donuts, and you know that, you white-mustachioed staffer. Welcome to the right side.

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