Today, U.S. Senator Ben Sasse, a member of the Senate Banking Committee, led a group of nine Senators in announcing their intent to work to invalidate any new rules issued by the Consumer Financial Protection Bureau (CFPB) if Leandra English prevails in her attempts to serve as the bureau’s Acting Director.
"Unfortunately, this rogue employee is trying to follow former CFPB Director Cordray's example and run the agency as an unaccountable fourth branch of government," the Senators wrote to Acting Director Mick Mulvaney. "Should this employee prevail in court and successfully serve as Acting Director, we would support legislative efforts to invalidate any new rules finalized by the agency during this employee’s service, including the use of the Congressional Review Act."
"We don't have four branches of government – we have three," said Senator Sasse separately. "King Richard can't leave to run for office and handpick his successor without any say from the American people. There's no clause anywhere in the Constitution like that."
Leandra English is the designated representative of former CFPB director Richard Cordray, who left the bureau to pursue political ambitions in Ohio. Last weekend, English filed a lawsuit to block Acting Director Mick Mulvaney who was selected to lead the bureau until the Senate confirms a new director. Yesterday, a federal judge denied English’s request and English is expected to file an appeal.
The letter to Acting Director Mulvaney was signed by Senators Sasse, Isakson, Cruz, Paul, Inhofe, Sullivan, Lee, Wicker, and Enzi.
The full text of the letter is found below:
Dear Mr. Mulvaney:
Congratulations on your appointment to serve as Acting Director of the Consumer Financial Protection Bureau (CFPB). We write because we are disturbed by efforts of a rogue CFPB employee to serve as Acting Director of your agency despite President Trump's designation of you as Acting CFPB Director. Unfortunately, this rogue employee is trying to follow former CFPB Director Cordray's example and run the agency as an unaccountable fourth branch of government. Should this employee prevail in court and successfully serve as Acting Director, we would support legislative efforts to invalidate any new rules finalized by the agency during this employee’s service, including the use of the Congressional Review Act. We would also fight to ensure that Congress defunds the CFPB until this employee has relinquished control of the CFPB.
This effort to stay on as Acting Director is especially concerning because more is at stake than interpreting the Federal Vacancies Reform Act of 1998. Successful control of the CFPB would give this employee – as the single head of an independent agency who refuses to answer to the President – great, unconstitutional power to shape regulatory policy. As a recent Treasury Report argued, the CFPB faces "few of the traditional checks and balances necessary to restrain regulatory abuses and arbitrary decision-making," including the annual appropriations process. As Judge Kavanaugh explained in PHH Corporation v. CFPB:
[T]he single-Director structure of the CFPB represents a gross departure from settled historical practice. Never before has an independent agency exercising substantial executive authority been headed by just one person.
These recent events are a clear demonstration of the dangers of the CFPB's unconstitutional, unaccountable structure. We believe in protecting consumers but disagreement about how to do so must not come at the expense of our constitution. Our nation's founders instituted multiple checks and balances on the unrestrained use of executive power. This outrageous attempt to subvert your appointment as Acting Director of the CFPB violates those foundational principles.
Thank you for your consideration. We look forward to working with you as Acting Director of the CFPB.
Senator Ben Sasse
Senator Johnny Isakson
Senator Ted Cruz
Senator Rand Paul
Senator James Inhofe
Senator Dan Sullivan
Senator Mike Lee
Senator Roger Wicker
Senator Michael Enzi
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