Two bosses is one too many

Two bosses is one too many

Who's in charge here?

Two people — a man and a woman — showed up Monday to take over the leadership of the federal Consumer Financial Protection Bureau.

One, White House budget director Mick Mulvaney, was named by President Donald Trump to lead the agency until the U.S. Senate confirms a permanent successor for former bureau chief Richard Cordray.

The other, Leandra English, Cordray's former chief of staff, was directed by Cordray to fill his empty post.

Two people, one position — who has the legal authority to take over? A presidential appointee or a bureaucrat's appointee?

Even though the answer would seem obvious — the president makes executive branch appointments — the issue was instead settled by a federal judge Tuesday.

Judge Timothy Kelly, who was nominated by Trump and confirmed by the Senate in September, declined to stop the president from installing Mulvaney. In doing so, Kelly ruled against English, who had sought an emergency restraining order.

The judge's ruling, which is not the final decision, said English had not shown a substantial likelihood that she would succeed on the merits of her case. The judge's decision is not immediately appealable.

Welcome to the wacky and probably unconstitutional world of the CFPB, an executive branch agency created by Congress to be unaccountable to the executive branch of government.

To say the CFPB has a unique status within the executive branch of government is to understate the obvious.

It is, as directed by Congress, an independent agency whose single director cannot be dismissed by the president except for cause. It is guaranteed funding through the Federal Reserve Bank, meaning it is beyond reach of the congressional appropriations process. In other words, it's armed with plenty of power of the nation's financial institutions and unaccountable for the manner in which it exercises that power.

Or, to put it another way, its mere existence as defined by its structure is an abuse of power, an abomination in the context of the U.S. Constitution's division of powers — three separate and co-equal branches of government, executive, legislative and judicial — established to keep government officials in line.

The fussing and fighting between Democrats and Republicans on the appointment question is obscuring the real question of the agency's legitimacy. Perhaps they'll get to the bigger issue later.

The riff of the agency re-emerged last weekend after Cordray resigned and appointed English. Shortly afterward, the White House announced that Mulvaney would take over the bureau on an interim basis.

Democrats backing English cited language in the legislation creating the CFPB that says outgoing director may appoint the agency's deputy director to take over until the president nominates a permanent replacement and that appointee is confirmed by the U.S. Senate.

Illinois U.S. Sen. Dick Durbin was quite correct when he noted that "the statute is specific, it's clear and it says the deputy shall take over." But, as Durbin knows, there's more to it than that.

The White House pointed out that the federal Vacancies Act holds that the president can name temporary agency heads and contends that the act trumps the language in the CFPB. As a matter of both common sense and constitutional niceties, it certainly should.

But there was more to this dispute than squabbling over who has the appointment power. Congress, then controlled by Democrats, created the CFPB to be beyond accountability in its creation and enforcement of financial regulations they find most appealing.

Republicans not only dislike the structure of the CFPB but the ideological zeal with which it pursues its policy and political goals.

The CFPB's politics, however, were not the issue. What matters here is that its operations must fit within a constitutional framework that emphasizes limited power and political accountability.

Kelly's ruling properly keeps appointment power within the executive branch.

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