IT'S GOOD TO BE THE KING:

Given that two separate laws govern the replacement of an executive agency's director, the question is which one controls here. On the one hand, the FVRA states that when an officer like Cordray resigns, the president "may direct" an individual who has already received Senate confirmation for his or her current position to assume that officer's duties temporarily. In February, the Senate confirmed Mulvaney as director of OMB, so he would seem to fit this description, rendering his appointment legitimate.

But Dodd-Frank, the subsequent law that created the CFPB, provides a different mechanism for replacing the board's director. The statute declares that the deputy director "shall ... serve as acting director in the absence or unavailability of the Director." English argues that, upon his resignation, Cordray became "absent," allowing her to become "acting director." She also contends that this regulation was intended to insulate CFPB from presidential whims. That sounds right--but so does Mulvaney's argument on the FVRA. So which statute wins?

Slate contributor and University of Chicago Law School professor Daniel Hemel points to a provision in Dodd-Frank that weighs in Mulvaney's favor. The law states that "except as otherwise provided expressly by law," all federal laws "dealing with" federal officers "shall apply" to the CFPB. The FVRA is clearly such a law, so unless Dodd-Frank "expressly" overrides it, the statute applies here. And nothing in Dodd-Frank explicitly disavows the application of the FVRA to the CFPB. If the authors of the bill had intended to set up an exclusive line of succession for the agency, they could have. Instead, they included "a yield sign," as Hemel put it, allowing the FVRA to prevail.

There is another good reason to interpret the FVRA this way: English's argument raises serious constitutional concerns. The CFPB may be an "independent agency," but it is still part of the executive branch. Trump, in whom the Constitution vests "the executive power," must have some meaningful control over the bureau. Yet English--who was selected not by a president but by Cordray himself--claims Trump cannot even appoint the CFPB's acting director. As Jonathan Adler notes, her position "would take agency independence to a new level," placing the CFPB in the hands of a democratically unaccountable bureaucrat until the president formally replaces her. Bloomberg View's Noah Feldman makes a similar point, writing that English's argument "contradicts basic principles of democratic legitimacy."

Federal courts must attempt first and foremost to interpret ambiguous statutes in a manner that comports with the Constitution.

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