In the on-going debate over who now heads the Consumer Financial Protection Bureau (CFPB), the focus has been on whether the statute establishing the CFPB (the Dodd-Frank Act) overrides the Vacancy Reform Act (VRA).
(Marty Lederman has a good discussion here). The debate highlights a broader point about textualism (and, by extension, originalism).
Dodd-Frank says that the Deputy Director of the CFPB “shall . . . serve as acting Director in the absence or unavailability of the Director.” The VRA says that in the case of a vacancy in an office for which Senate advice and consent is required (which includes the Director of the CFPB) “the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity” but also that “notwithstanding [the prior provision], the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity …” President Trump appointed an Acting Director of the CFPB pursuant to the VRA; but the Deputy Director of the CFPB claims to be Acting Director pursuant to Dodd-Frank.
My view (following Andy McCarthy at NRO) is that President Trump’s appointment should prevail, as it is obviously authorized by the VRA and that the Dodd-Frank provision isn’t relevant.
The key language from Dodd-Frank again is that the Deputy Director serves as Director “in the absence or unavailability of the Director.” That is not the situation here. The former director (Richard Cordray) has resigned. Thus there is no Director. As McCarthy puts it: “What Cordray has created is a vacancy. He is not merely absent or unavailable in the commonsense, temporary understanding of these words; he is gone.”
In ordinary speech, the phrases “absence” and “unavailability” of a person indicate that the person exists but is presently incapable of acting — for example, because the person is sick, on vacation, or otherwise incapacitated. Suppose I call an agency and ask to speak to the Director, and I’m told by the receptionist that the Director is “absent or unavailable.” I will assume that there is a Director, but he can’t talk to me now, and I might ask the receptionist to have him call me once he is available. I would be quite surprised if I later learned that actually there was no Director of that agency because the office was vacant, the previous Director having resigned or died. If that were the case, the receptionist would have said “sorry, there currently is no Director as the office is vacant,” not that the Director is “absent or unavailable” (implying that there is a Director who can’t come to the phone at the moment).
This reading perfectly reconciles the two statutes. Dodd-Frank provides for the case in which there is a Director of the CFPB but he cannot perform his duties. The VRA provides for the case in which there is no Director (a vacancy).
The current situation is obviously in the latter category. Cordray is not the Director, having resigned. The textual counterargument must somehow be that Cordray is actually still “the Director” but he is “absen[t] or unavailab[le]” due to his resignation. But that is incoherent. Once he resigns he is no longer the Director, and although he may be “unavailable,” he is not the Director and his unavailability does not mean “the Director” is unavailable. Rather, after his resignation there is no Director. If the question is, is “the Director absent or unavailable,” the answer is no, because there is no Director to be absent or unavailable.
To be sure, it’s possible to argue that the phrase “absence or unavailability of the Director” could include a situation in which there is no Director. (As Professor Lederman notes, the Office of Legal Counsel has taken that position). But here is my broader point about textualism: Textualism does not contend that statutes (or constitutional provisions) will typically have only one conceivable meaning. Lawyers will almost always be able to find another conceivable meaning, if it serves their interests (that’s how lawyers are trained). The question for a textualist is whether one meaning is substantially more likely than the other — if so, it should be preferred, even where there is a conceivable alternative.
In the CFPB debate, I think the ordinary meaning of “absence or unavailability” of the Director is clear and does not include vacancies — even if the phrase could arguably be stretched to include them. It’s not enough that the stretch is arguable; the question is whether the stretch is the more plausible reading of the language. I think quite clearly is not. That should be enough for a textualist conclusion: the VRA, not the Dodd-Frank provision, applies to the current situation.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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