The OLC's Legal Opinion on the CFPB succession is out. It's available here. Three observations.
First, the OLC opinion dispenses with the idea that only the FVRA, not the CFPA governs succession. That's an important point in terms of how the issue will likely be argued. The White House isn't bound to argue the OLC's analysis, but this strongly indicates that the White House isn't going to argue that the CFPA doesn't provide for succession.
Second, the opinion argues that the FVRA exists as an alternative to the CFPA. The basis for this analysis is some of the FVRA's legislative history, prior OLC opinions, and a single circuit court opinion. The problem with the OLC's analysis, however, is that both the part of the legislative history cited, the previous OLC opinions (both about 28 USC 508 and OMB) and the circuit court opinion on the NLRB General Counsel deal with the effect of the FVRA on existing statutes. As I noted in a prior post, the Senate Report on the FVRA is very clear that existing statutes are treated differently than future statutes under the FVRA. For existing statutes, the FVRA is an alternative to the succession mechanism detailed in the statute. The Senate report specifically mentions this for the Attorney General, the OMB, and the NLRB General Counsel positions. Congress was of course able to do this because a later statute can always override an earlier one.
But for future statutes, the FVRA is either exclusive or does not apply. As the Senate report notes:
"[W]here Congress provides that a statutory provision expressly provides that it supersedes the Vacancies Reform Act, the other statute will govern. But statutes enacted in the future purporting to or argued to be construed to govern the temporary filling of offices covered by this statute are not to be effective unless they expressly provide that they are superseding the Vacancies Reform Act." S. Rep. 105-250, 1998 WL 404532 at *15 (emphasis added).
This would have to be the case because one Congress cannot tie the hands of a future Congress. At most they can set up a default rule, but Congress if passed a law providing that one statute would always provide an alternative method of appointment no matter what any future Congress wanted to do, a future Congress would not have to repeal such a statute to avoid its application to a new office, only make clear that it did not apply to the new office. In other words, the different treatment of existing and future statutes makes a lot of sense. The CFPB is, of course, under a future statute, unlike all of the cases the OLC has addressed in the past. That would suggest that the OLC's past opinions, on which it heavily relied in this opinion, were of limited value. Yet strangely the above quoted language received no mention in the OLC opinion. I don't know if the OLC just overlooked it or what, but I think it really undermines the legislative history part of the OLC's argument, as well as the OLC's reliance on its past opinions and on the 9th Circuit opinion regarding the NLRB General Counsel. Instead, what we're left with is the statutory text, and that's ambiguous on its own. Once one plugs in this bit of legislative history, however, then I think it seems that the OLC just got it wrong.
Third, check out the last paragraph in Part III of the OLC opinion. It really doesn't flow from the prior paragraphs or, for that matter, fit in Part III. Part III is about whether the CFPB's independent status changes anything. But the final paragraph is about the legislative history of the CFPA's succession provision and whether that indicates that the FVRA applies. That's an issue that more properly relates to the Part I of the opinion, which is also discussing the same provision. This is just a guess, but my sense is that the final paragraph in Part III was a last minute addition to the memo. If so, it means that OLC wrote Part I without having properly dug through the legislative history....