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Harvard Con law Prof Laurence Tribe: why DT can't make Mulvaney acting head of CFPB.
https://www.washingtonpost.com/news/posteverything/wp/2017/11/27/sorry-mr-president-you-cant-make-mulvaney-acting-head-of-cfpb/?utm_term=.51954d12f85bUnder the explicit text of the 2010 Dodd-Frank financial reform act, which created the CFPB, Deputy Director Leandra English became CFPB’s “acting director” at midnight on Nov. 24, when Director Richard Cordray resigned his post and thereby became “unavailable” within the meaning of the law’s specific provision for that contingency that the deputy director will “serve as acting director in the absence or unavailability of the director.” Even the Justice Department’s Office of Legal Counsel acknowledged, in its Nov. 25 memo to White House Counsel Donald McGahn, that this language applies, conceding that “the resignation of the director would satisfy the requirement of ‘absence or unavailability.’ Therefore, the statute would permit a properly appointed deputy director to serve as the acting director during a vacancy.”
Yet OLC concluded, unconvincingly, that the 1998 Federal Vacancies Reform Act still leaves the president with the option of installing Mulvaney, even though that statute’s own terms explicitly state that it doesn’t kick in when another agency-specific statute (here, the subsequently enacted provision of Dodd-Frank) “designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity.” The OLC analysis treated that language as inconclusive because the “Vacancy Reform Act itself, like the CFPB-specific statute, similarly uses mandatory terms,” as if interpreting overlapping statutes were a matter of grammatical classification rather than a matter of making sense of an overall statutory scheme.
However muddled, at least it’s a theory. But CFPB’s general counsel, Mary McLeod, in her own Nov. 25 memo, offers a wholly incongruous legal gloss. She doesn’t rebut OLC’s concession that the vacancy created by Cordray’s resignation triggers the agency-specific succession provision of Dodd-Frank — but she doesn’t exactly accept it, either. Instead, she toys with various definitions of “unavailability” as she attempts to advance the idea that the director’s resignation makes his status something other than “unavailable” (an alternative status she never quite articulates), winding her way to the notion that Congress may have intended “unavailability” to mean something temporary, not permanent.
Yet OLC concluded, unconvincingly, that the 1998 Federal Vacancies Reform Act still leaves the president with the option of installing Mulvaney, even though that statute’s own terms explicitly state that it doesn’t kick in when another agency-specific statute (here, the subsequently enacted provision of Dodd-Frank) “designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity.” The OLC analysis treated that language as inconclusive because the “Vacancy Reform Act itself, like the CFPB-specific statute, similarly uses mandatory terms,” as if interpreting overlapping statutes were a matter of grammatical classification rather than a matter of making sense of an overall statutory scheme.
However muddled, at least it’s a theory. But CFPB’s general counsel, Mary McLeod, in her own Nov. 25 memo, offers a wholly incongruous legal gloss. She doesn’t rebut OLC’s concession that the vacancy created by Cordray’s resignation triggers the agency-specific succession provision of Dodd-Frank — but she doesn’t exactly accept it, either. Instead, she toys with various definitions of “unavailability” as she attempts to advance the idea that the director’s resignation makes his status something other than “unavailable” (an alternative status she never quite articulates), winding her way to the notion that Congress may have intended “unavailability” to mean something temporary, not permanent.
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into whether Trump's judicial choices will side with the rule of law, or side with their benefactor. 
Wouldn't you just LOVE IT if the Judge ruled against the Orange Shit Cannon? 
A Trump appointed Judge having the integrity to go against "The Little DICKtator's"wishes? 
I'm not holding out much hope, though, especially in the first big test of Trump's DICKtatorial powers. 
Oh well, it was a nice thought.
