The dispute over Trump’s consumer appointment could hinge on one word

The Dodd-Frank Act created the Consumer Financial Protection Bureau as an independent federal agency, to be led by a single director.

The bureau's first director, Richard Cordray, resigned last week and Leandra English, the deputy director, became the agency's acting director by law, according to a lawsuit filed by English on Sunday.

Hours after Cordray's resignation, however, President Donald Trump announced he was instead appointing his budget director, Mick Mulvaney, to head the CFPB on an interim basis.

RELATED: Photos of Mick Mulvaney

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WASHINGTON, DC - SEPTEMBER 08: White House Budget Director Mick Mulvaney speaks to members of the media after a House Republican Conference meeting September 8, 2017 at the Capitol in Washington, DC. Mulvaney was on the Hill to push for the Trump Administration's Hurricane Harvey relief and debt limit package. (Photo by Alex Wong/Getty Images)
Mick Mulvaney, director of the Office of Management and Budget (OMB), holds up what he described as U.S. President Barack Obama regulations during a White House press briefing in Washington, D.C., U.S., on Thursday, July 20, 2017. Mulvaney has called Trump's tax-cutting approach to the economy MAGAnomics, a spin on Trump's campaign slogan, 'Make America Great Again' and has repeatedly attacked the Congressional Budget Office (CBO) for its estimates on the impact of Republicans' plans to repeal and replace Obamacare. Photographer: Andrew Harrer/Bloomberg via Getty Images
Mick Mulvaney, Director of the Office of Management and Budget, speaks about 'MAGAnomics' during the daily press briefing in the Brady Press Briefing Room at the White House in Washington, DC, July 20, 2017. / AFP PHOTO / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)
WASHINGTON, DC - JUNE 21: OMB Director Mick Mulvaney testifies during a Financial Services and General Government Subcommittee hearing on the budget for the Office of Management and Budget on Capitol Hill on June 21, 2017 in Washington, DC. (Photo by Astrid Riecken/Getty Images)
WASHINGTON, DC - Budget Director for President Donald Trump, Mick Mulvaney explains and defends the administration's 2018 budget to the House Budget Committee on Capitol Hill in Washington, DC Wednesday May 24, 2017. (Photo by Melina Mara/The Washington Post via Getty Images)
UNITED STATES - MAY 24: OMB Director Mick Mulvaney testifies before a House Budget Committee hearing in Longworth Building titled 'The President's FY2018 Budget' on May 24, 2017. (Photo By Tom Williams/CQ Roll Call)
Mick Mulvaney, director of the U.S. Office of Management and Budget (OMB), listens during a House Budget Committee hearing on U.S. President Donald Trump's fiscal 2018 budget proposal in Washington, D.C., U.S., on Wednesday, May 24, 2017. Trump would dramatically reduce the U.S. government's role in society with $3.6 trillion in spending cuts over the next 10 years in a budget plan that shrinks the safety net for the poor, recent college graduates and farmers. Photographer: Andrew Harrer/Bloomberg via Getty Images
WASHINGTON, DC - MAY 23: Office of Management and Budget Director Mick Mulvaney holds a news conference to discuss the Trump Administration's proposed FY2017 federal budget in the Brady Press Briefing Room at the White House May 23, 2017 in Washington, DC. Calling it a 'New Foundation for American Greatness,' the $4.1 trillion budget for would cut programs for the poor, including health care, food stamps, student loans and disability payments while offering big tax cuts for the wealthy. (Photo by Chip Somodevilla/Getty Images)
Mick Mulvaney, director of the U.S. Office of Management and Budget, center, holds a volume of the fiscal year 2018 budget while speaking with Davita Vance-Cooks, director of the Government Publishing Office (GPO), left, during a tour of the GPO production facility in Washington, D.C., U.S., on Friday, May 19, 2017. President�Donald Trump�will send to Congress on Tuesday a proposal for balancing the federal budget within 10 years through deep cuts to discretionary and safety net spending, according to a U.S. official. Photographer: T.J. Kirkpatrick/Bloomberg via Getty Images
WASHINGTON, DC - MAY 02: White House Press Secretary Sean Spicer (R) walks into the briefing room with OMB Director Mick Mulvaney (L) and Secretary of Homeland Security John Kelly (C), to brief the media on President Trump's budget, at the White House (Photo by Mark Wilson/Getty Images)
Mick Mulvaney, director of the Office of Management and Budget (OMB), right, speaks as Gray Davis, former governor of California, listens during the Leaders In Global Healthcare and Technology (LIGHT) conference at Stanford University in Stanford, California, U.S., on Thursday, May 11, 2017. The LIGHT conference gathers leaders from a broad cross-section of executives and top policy makers in the health-care field to discuss the latest developments, challenges and opportunities shaping the healthcare industry. Photographer: David Paul Morris/Bloomberg via Getty Images
WASHINGTON, DC - MARCH 16: Office of Management and Budget Director Mick Mulvaney arrives for a briefing in the Brady Press Briefing Room at the White House March 16, 2017 in Washington, DC. Mulvaney took questions about President Donald Trump's federal budget blueprint which was released Thursday. (Photo by Chip Somodevilla/Getty Images)
WASHINGTON, DC - MARCH 13: U.S. Health and Human Services Secretary Tom Price (L) and Office of Management and Budget Director Mick Mulvaney talk to reporters following the release of the Congressional Budget Office report on the proposed American Health Care Act outside the White House West Wing March 13, 2017 in Washington, DC. Price said 'We disagree strenuously' with the findings of the CBO report about the Republican's attempt to repeal and replace the Affordable Care Act, or Obamacare. (Photo by Chip Somodevilla/Getty Images)
US Vice President Mike Pence (R) delivers remarks before swearing in Mick Mulvaney (L) as Director of the Office of Management and Budget in Washington, DC, on February 16, 2017. / AFP / NICHOLAS KAMM (Photo credit should read NICHOLAS KAMM/AFP/Getty Images)
WASHINGTON, DC - FEBRUARY 16: U.S. Vice President Mike Pence (C) Mick Mulvaney (L), swears as new Office of Management and Budget Director, as his wife Pam Mulvaney holds a bible during a ceremony in the Eisenhower Executive Office Building on February 16, 2017 in Washington, DC. (Photo by Mark Wilson/Getty Images)
UNITED STATES - NOVEMBER 4: Reps. Mick Mulvaney, R-S.C., left, and Randy Hultgren, R-Ill., attend a House Financial Services Committee hearing in Rayburn Building titled Semi-Annual Testimony on the Federal Reserves Supervision and Regulation of the Financial System,' November 4, 2015. Federal Reserve Chairwoman Janet Yellen testified. (Photo By Tom Williams/CQ Roll Call)
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Today, both English and Mulvaney are claiming authority over the agency, and even sending e-mails to confused employees as acting director.

According to English's complaint filed in federal court, the Dodd-Frank Act clearly mandates that English, as the deputy director, shall serve as the acting director.

The Department of Justice disagrees. In a memo, the DOJ concluded that Trump has the authority to name Mulvaney the acting head of the agency.

Who is right?

The director of the CFPB is one of the many offices filled by presidential appointment, with the "advice and consent" of the Senate.

The federal Vacancies Reform Act of 1998 gives the president the power to temporarily authorize an acting official to perform the duties of an officer of an executive agency. The critical language in the Vacancies Reform Act is this: It is the "exclusive means" for authorizing the appointment of an acting head unless another statute expressly designates a particular officer to serve in that acting capacity.

In fact, the law establishing the CFPB does just that: It expressly designates a particular officer and states that the CFPB's deputy director shall "serve as acting Director in the absence or unavailability of the Director."

Here, both the DOJ and English agree. Where they disagree is on the meaning of the word "exclusive."

English’s interpretation is that the Vacancies Reform Act is a default in case there is no other statute. But because the Dodd-Frank Act expressly designates how the CFPB vacancy is filled, then Dodd-Frank becomes the exclusive way to fill the post, and the Vacancies Reform Act ceases to have any legal authority.

The DOJ's interpretation is that because the Dodd-Frank Act designates how the CFPB vacancy is filled, then Dodd-Frank just becomes one of two ways to fill the vacancy. The Vacancies Reform Act continues to be an alternative legal way to fill the vacancy. Under that interpretation, the Vacancies Reform Act is no longer the exclusive way to fill vacancies — it becomes an additional way to do so.

The courts will have to decide which interpretation is right.

Danny Cevallos is an MSNBC legal analyst who practices in the areas of personal injury, wrongful conviction and criminal defense in Pennsylvania, New York and the U.S. Virgin Islands, at the law firm of Cevallos & Wong in Pennsylvania.

 

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