E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Observations on the Government's first brief in English v. Trump & Mulvaney
Marty Lederman
President Trump and Mick Mulvaney have filed
their opposition
to Leandra English’s motion for a temporary restraining order against
Mulvaney.The motion is now in the hands
of newly appointed Judge Timothy Kelly.Here are some quick observations about the government’s brief:
1.On
the key merits point—whether the 2010 Dodd-Frank statute providing that the
Deputy Director “shall serve” as acting Director in the case of a vacancy
supersedes the President’s authority under the Vacancies Reform Act of
1998--DOJ somewhat surprisingly continues to lead (p.11), as did the OLC
opinion issued on Saturday, with a quotation from the 1998
Senate Report. In my post Sunday, I explained why such reliance, on (unpersuasive) report language concerning language in a proposed version of the VRA that was altered by the time Congress enacted the legislation, is unpersuasive.
2.The
quotations in the brief from the 1998 Senate Report are a cut-and-paste job
from passages two pages apart in the Report, and (as I explained on Sunday) elide the key language from
the second of those passages. Use of such selective and disingenuous quotation as the lead argument undermines, rather than supports, DOJ’s proposed reading of Dodd-Frank’s “shall serve” provision.
3.DOJ
adverts, almost as an afterthought (pp. 12-13), to Dan Hemel’s argument
about subsection 5491(a) of Dodd-Frank (“Except as otherwise provided expressly
by law, all Federal laws dealing with public or Federal contracts, property,
works, officers, employees, budgets, or funds, including the provisions of
chapters 5 and 7 of title 5, shall apply to the exercise of the powers of the
Bureau.”).I'm not persuaded by that argument, because the “shall serve” provision in the very next
subsection is such an express
provision of law; but, in any event, that argument is now in play, too.
4.DOJ
relies heavily throughout the brief on the authority of Saturday's OLC opinion,
only to then (fn. 2) weirdly "reserve the right to contest" OLC's
conclusion--from just two days earlier!--that the phrase "absent or
unavailable" in Dodd-Frank section 5491(b) covers cases of resignation by
the Director.
5. The brief also oddly states at least five times
that Director Cordray "purported" to name Leandra English as Deputy
Director--and even reserves the right (fn.2) to contest whether she is the Deputy!
I have no idea what the (unstated)
theory might be to challenge that appointment.
6. Footnote 2 hints that Trump could (and
might) remove English at will. See my post
yesterday on why that prospect casts a deep shadow over this legal dispute.
7.As
it seems to do as a matter of course these days, DOJ trots out its new
favorite Mississippi v. Johnson argument
(p.14), insisting that the court cannot issue the requested injunction even if Mulvaney is serving unlawfully:
[E]ven
if the President’s designation of Acting Director Mulvaney was not authorized
by the VRA, this Court would still lack jurisdiction to grant Plaintiff her
requested relief of an injunction against the President. The Supreme Court has
long held that courts have “no jurisdiction of a bill to enjoin the President
in the performance of his official duties.” Mississippi
v. Johnson, 71 U.S. at 500–01 (“The Congress is the legislative department
of the government; the President is the executive department. Neither can be
restrained in its action by the judicial department.”). Given the President’s
unique status in the constitutional scheme, the Court cannot issue an
injunction restraining the President’s exercise of his appointment power.
I’ve elsewhere
explained why DOJ has, well, stayed in Mississippi a bit too long. (See also Steve Vladeck’s comprehensive
post.)The Mississippi
v. Johnson argument is especially misplaced here, because English has requested
relief against an officer other than the President (“plaintiffs request
that the Court . . . [o]rder that defendant Mulvaney shall refrain from
accepting any appointment to the position of Acting Director of the Consumer
Financial Protection Bureau, or asserting or exercising in any way the authority
of that office”) that would resolve the case.
8. Several
career CFPB attorneys signed the brief, suggesting that there's little or no
resistance in the agency to Mulvaney's assertion of authority. Indeed, the brief states categorically (p.4) that
"CFPB staff (with the exception of Plaintiff) is treating Mulvaney as the
Acting Director." Posted
3:58 AM
by Marty Lederman [link]