Tuesday, November 28, 2017

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."

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