Trump Probably Had the Right to Appoint Mulvaney


The Trump administration has notched up a significant victory in its battle over the future of consumer protection in the USA after a federal judge refused to block the president's choice for acting head of the Consumer Financial Protection Bureau.

As of Tuesday, the CFPB's website lists Mulvaney as the agency's acting director, while English is listed as its deputy director.

U.S. District Court judge Timothy Kelly happens to be a Trump appointee, but he's also a former federal prosecutor and counsel to Senate Judiciary Committee chair Chuck Grassley, not a ghost hunter.

This is a developing story. Now it's possible Mulvaney, who once called the agency a "sick, sad joke", will lead it for months. Kelly was one of the many judges the Trump administration and Republicans in Congress have been rushing full-speed ahead to confirm.

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The judge's ruling sparked immediate outrage on social media, as consumer advocates and analysts highlighted Mulvaney's expressed desire to do away with the agency he will (for now, at least) be tasked with running. English staked her claim on a provision in the 2010 Dodd-Frank financial reform, which created the bureau, stating that the deputy "shall" become the acting director automatically if the director leaves.

"There are some guardrails around how much damage they can do; rules that were adopted through a lengthy process, with data and studies and findings, can't just be rolled back", said Lauren Saunders, associate director of the National Consumer Law Center. The American Bar Association could not evaluate him and issue a qualification rating, which is without any recent precedent. He was confirmed 94-2.

Given that Kelly was just appointed by Trump, and may well have ambitions beyond this low federal court, some observers think his decision in this case might be a foregone conclusion. The White House and the Justice Department have defended that move, saying that Trump has the authority to do so under the 1998 Federal Vacancies Act. Team English leaned on the Dodd-Frank Act, while the Trump administration referenced the Vacancies Reform Act, allowing presidents to fill vacancies at executive agencies. Her analysis relied heavily on a memo from the Office of Legal Counsel written by Steven Engel-who represented a payday lender in front of the CFPB past year, as my colleague David Dayen recently pointed out.

The woman who put the acting in acting director is deposed.