A federal judge ordered on Wednesday that Mulvaney will be allowed to carry on as the bureau's acting director after denying an injunction request from his challenger, Leandra English.
Mick Mulvaney speaking at CPAC 2011
English's argument hinges upon the notion that the CFPB was meant to be an independent agency, and cites the 2010 Dodd-Frank Act, which created the agency.
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Mulvaney was appointed acting director under the Federal Vacancies Reform Act, which allows the president to name a now serving Senate-confirmed official as acting director for a set period of time or until a permanent director is confirmed. But the judge concluded that issuing the injunction that English wanted wouldn't solve the problem. English has served in number of senior leadership roles at the CFPB, including deputy chief operating officer, acting chief of staff, and deputy chief of staff. The decision further reasoned that removing Mulvaney through a preliminary injunction would fail to "pay particular regard for the public consequences" and potential chaos that such an action could bring to the agency and the public's expectations for the CFPB. The CFPB's previous Director, Richard Cordray, resigned effective at midnight on the day after Thanksgiving: Friday, November 24, 2017. "English in her presumed capacity as Acting Director", Mulvaney wrote.
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Trump was backed by the Justice Department's Office of Legal Counsel and the CFPB's general counsel, who both issued memos on November 25 concluding that the president had authority to fill the acting director job under the vacancies reform act. English then filed the motion for a preliminary injunction to block Mulvaney's appointment, and Kelly heard arguments on December 22.
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Defendants, joined by the CFPB's General Counsel, argue that the President's appointment of Mulvaney is valid under a separate statute, the Federal Vacancies Reform Act of 1998 (the "FVRA"), 5 U.S.C. § 3345 et seq., which they contend provides the President an available method to fill Executive Branch vacancies such as this one. He said in a statement to BuzzFeed News that they were disappointed with Kelly's decision. "English had not shown a substantial likelihood of success on the merits, and is unlikely to suffer irreparable harm". "Mr. Mulvaney's appointment undermines the bureau's independence and threatens its mission to protect American consumers."Reuters said that a spokesperson for Mulvaney did not immediately respond to a request for comment".