The deputy director of the Consumer Financial Protection Bureau, Leandra English, has filed a lawsuit asking a federal district court to prevent President Trump from installing Mick Mulvaney, who is currently the director of the Office of Management and Budget, as the CFPB’s acting chief. Based on everything I know, I think that English would do a better job of leading the agency. I’m still not persuaded, though, that the Dodd-Frank Act displaces the Federal Vacancies Reform Act provision allowing the President to appoint a Senate-confirmed official such as Mulvaney to be temporary agency chief. In particular, I’m skeptical of the claim that the use of the verb “shall” in Dodd-Frank gives that statute lexical priority over the FVRA, which uses the verb “may.”

The relevant provision of the Dodd-Frank Act, 12 U.S.C. § 5491(b)(5), says that the deputy director of the CFPB “shall . . . serve as acting Director in the absence or unavailability of the Director.” English’s complaint characterizes that as “mandatory text.” If read to be mandatory, § 5491(b)(5) would seem to conflict with a provision of the Federal Vacancies Reform Act, 5 U.S.C. § 3345(a)(2), which says that in the event of a vacancy at an executive agency:

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 . . . .

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