So here’s the problem:

1) When CFPB Director Richard Cordray stepped down last week, CFPB Deputy Director Leandra English became Acting Director. That’s the explicit instruction of the Dodd-Frank Act — the law that created the CFPB as an independent agency and outlined its line of succession in the event of a vacancy at the top before the end of a director’s five-year term.

2) When CFPB Director Richard Cordray stepped down last week, Office of Management and Budget Director Mick Mulvaney became Acting Director. That’s by virtue of a presidential appointment authorized by the Federal Vacancies Act — the law that allows the president to fill federal vacancies on an interim basis.

That disparity sets up English v. Trump, a federal lawsuit filed yesterday to settle the battle over the top of the nation’s consumer protection agency. On one side, the dedicated public servant whose appointment maintains the agency’s statutorily mandated independence. On the other side, the guy who called the CFPB’s successful efforts to police banks that have defrauded their customers, “a sick, sad joke” to his boss’s delight whose appointment maintains the executive branch’s authority to determine appointments when vacancies arise.

Trump’s case rests on the sort of textual analysis lauded by brand of jurists he keeps appointing — if they can find a snippet of text anywhere, regardless of context, history, timeframe, even scrivener’s errors — they’ll run with it if they can shoehorn their policy preferences into it. The Federal Vacancies Act absolutely grants Trump the authority to appoint interim directors… it says so right there!

English, represented by Deepak Gupta of the law firm Gupta Wessler, disagrees:

The President apparently believes that he has authority to appoint Mr. Mulvaney under the Federal Vacancies Reform Act of 1988, 5 U.S.C. § 3345(a)(2). But the Vacancies Act, by its own terms, does not apply where another statute “expressly . . . designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity,” 5 U.S.C. § 3347(a)(1)(B)—which is exactly what the Dodd-Frank Act does. The President’s interpretation of the FVRA runs contrary to Dodd-Frank’s later-enacted, more specific, and mandatory text. The President’s stance is also difficult to square with the relevant legislative history: An earlier version of the Dodd-Frank Act, which would have specifically allowed the President to use the Vacancies Act to temporarily fill the office, was eliminated and replaced with the current language designating the Deputy Director as the Acting Director. And the President’s attempt to appoint a still-serving White House staffer to displace the acting head of an independent agency is contrary to the overall statutory design and independence of the Bureau.

Well, sure, if you bring “the actual will of Congress” into it.

Look, there’s no problem with looking to text. In fact, that should always be the first stop because usually it’ll provide a clear outcome. Except, sometimes statutes create conflicts. It happens when thousands of legislators build a body of laws over a couple hundred years. When there are dueling phrases, what’s a body to do?

Try to interpret a document based on its context? That’s for saps! If the legislature meant this incredibly obvious result they should have written way back in 2010, “in the event that 7 years from now the director should resign, the deputy director shall assume that office even if the president wants to put a friend in the job who really hates the agency pursuant to the FVRA.” How can anyone divine the law’s intent unless congress provides something that explicit?

The irony, of course, is that the same political philosophy that complains about the reams and reams of hypertechnical regulation in this country is the primary motivation for it. America churns out dense, overly complex regulations because there are courts who refuse to accept common sense and only act if something is spelled out explicitly. Weirdly, if the shoe were on the other foot, conservatives still wouldn’t reach for legislative history — they’d just point to the text of Dodd-Frank and say, “it says so right there!”

This whole fight is reminiscent of the statutory kerfuffle that developed after the president fired Acting AG Sally Yates. While Trump had full authority to fire Yates, a minor statutory spat arose over the authority to issue FISA warrants. FISA — enacted in the aftermath of the Nixon years — expressly limited that powerful wiretapping authority to a handful of individuals who would have to testify about their interpretation of that authority before they could be confirmed. When Yates was fired, Trump appointed Dana Boente to the acting job, but Boente had never been confirmed to a job with FISA authority before. The president’s supporters pointed to the fact that the statute extended that authority to the Acting AG. Detractors pointed out that this parenthetical was added just to avoid the donut hole of a deputy losing their authority when promoted… because the DOJ has an independent line of succession like the CFPB, meaning no one envisioned this power ever circumventing the handful of people who received confirmations predicated on the fact that they would wield this authority. Ultimately, Lawfare had the right practical analysis here (not their primary analysis, mind you, but their alternative argument) pointing out that the line of succession had run completely dry meaning Boente had to have FISA authority in that instance or the statute wouldn’t make any sense. Unfortunately, that read technically allows a president to always fire everyone in the DOJ and give a stooge the power to wiretap the world — probably not the point of the law, but here we are.

Regardless of how you come down on either the English or Yates fight, taken together they reveal just what this administration thinks about interpreting the law: any text that justifies sweeping executive power is the only text that matters. And if a future Democrat were to take office, any text that justifies stripping the executive of all power is the only text that matters. When one side fervently exalts the facile reasoning of “textualism” above all else, the rule of law disintegrates when laws even arguably conflict — it’s just a pure power game as long as it hinges on the flimsiest of claims. We return to the rule of medieval Europe where a holographic will from a great-grandfather was enough to press a claim for the throne.

At this point, there’s no check on government power but the willingness of the courts to play along with linguistic mischief. At this rate, it looks like the courts are going to be willing to play along for a generation.

UPDATE: Here’s another interesting take on the complaint: what if the line of succession outlined in Dodd-Frank doesn’t apply here?

Check out the complaint on the next page…

Showdown over top post at key watchdog agency [CNN]

Yes, the New Acting Attorney General Can Sign FISA Applications [Lawfare]

Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.