For months, there has been increasing speculation that CFPB Director Richard Cordray will leave the Bureau to run for Governor of Ohio. Industry rumors have intensified in recent weeks, and the question has shifted from if Cordray will resign to when he will announce his candidacy. The consensus is that Cordray will step down in September. Cleveland.com columnist Brent Larkin recently went so far as to predict the announcement will be made on September 4 at the Cincinnati AFL-CIO annual Labor Day picnic.
Whether Cordray does in fact leave the CFPB, remains to be seen. But lost in the midst of rumors and conjecture is another significant question:
Who would replace Cordray as CFPB Director?
In a recent blog post from Ballard Spahr, Alan Kaplinsky attempted to answer that question. Kaplinsky writes, “Given the speculation that Director Cordray will soon resign to run for Ohio governor, we have been pondering whether President Trump could appoint an Acting Director upon his resignation or whether David Silberman, the Acting Deputy Director, would automatically become Acting Director.”
What did Kaplinsky conclude?
Our analysis indicates that under the Federal Vacancies Reform Act of 1998 (Vacancies Act) President Trump could appoint an Acting Director should Director Cordray resign.
It appears Congress did not expressly provide in Dodd-Frank for how a vacancy should be filled if the CFPB Director were to resign. Dodd-Frank provides only that the Deputy Director “shall serve as acting Director in the absence or unavailability of the Director.” It does not expressly authorize the Deputy Director to serve as Acting Director when a vacancy in the position of Director is created.
The Vacancies Act provides three options for replacing a vacancy:
- The “first assistant” (David Silberman, the Acting Deputy Director) can assume the duties of the position.
- The President can appoint someone to serve as Acting Director if that individual was already appointed to another position requiring Senate confirmation.
- The can select a current officer or employee of the agency (subject to certain requirements).
Assuming Trump would exercise his authority to appoint an Acting Director, the question then becomes who would Trump choose.
Treasury Secretary Mnuchin would be the obvious and logical person to serve as Acting Director. It should be noted that the Dodd-Frank Act authorized the Treasury Secretary “to perform the functions of the Bureau under this subtitle until the Director of the Bureau is confirmed by the Senate.” The fact that Congress considered the Treasury Secretary to be the appropriate person to run the CFPB until a Director was confirmed provides strong support for Secretary Mnuchin’s appointment to serve as Acting Director.