The Trump administration has used legally questionable loopholes to appoint acting leaders of DHS, skirting the Senate nomination process at an unprecedented level.
This opinion originally ran on TPM and can be found here.
It should be easy to determine who leads the Department of Homeland Security. But because the Trump administration has repeatedly failed to abide by the advice-and-consent process set out in the Appointments Clause of the Constitution, even Congress isn’t sure. In fact, former acting Secretary of DHS Kevin McAleenan — who announced his resignation on October 11 and left the agency in November — may have been in that role for seven months without any legal authority, meaning many of the actions taken by the department in recent months could be invalid and subject to legal challenge.
Kirstjen Nielsen was the last Senate-confirmed secretary of DHS. In April, on Nielsen’s last day in office, she changed the DHS order of succession to enable McAleenan to assume the top role after her departure. On November 8, after McAleenan announced his resignation, he pulled the same move, this time changing the DHS order of succession to make way for Chad Wolf. The Senate confirmed Wolf as undersecretary of the DHS Office of Strategy, Policy and Plans on November 13, and since all of the positions above him in the revised succession order were vacant, Wolf was sworn in as acting secretary.
But there’s a twist, revealed in a November 15 letter from Reps. Bennie Thompson (D-MS) and Carolyn Maloney (D-NY). According to DHS documents obtained by the House Committee on Oversight and Reform, it appears Nielsen changed the order of succession only for purposes of an emergency — so it didn’t apply when she resigned. As a result, it appears that McAleenan’s appointment was not lawful, meaning he did not have the authority to change the order of succession to make way for Wolf.
And under the Federal Vacancies Reform Act (FVRA), the law that allows the president to name acting officials under certain circumstances, if McAleenan was serving unlawfully, as it appears that he was, all actions taken by him have no force or effect. This would include McAleenan’s placement of Ken Cuccinelli in the role of acting head of U.S. Citizenship and Immigration Services (USCIS), which would render Cuccinelli’s actions in that role void as well. The same day he became acting secretary, Wolf elevated Cuccinelli to “senior official performing the duties of the deputy secretary of Homeland Security.” But because of the tainted chain of appointments, Wolf may not have had the authority to elevate Cuccinelli either.
And, while DHS has been busy pulling every policy lever to reduce immigration to the United States without congressional authorization, these apparent violations of the FVRA and the Appointments Clause mean that each of those changes is legally vulnerable. Under McAleenan and Cuccinelli, DHS has made it harder to get a work visa and an investment visa; harder to remain legally in the United States as an immigrant who has suffered financial hardships; more expensive to apply to become a citizen; and more difficult to apply for asylum, to name just a few actions that may have been carried out without the proper authority.
Presidents of both parties have occasionally stretched the boundaries of the FVRA to place individuals in acting roles, but President Trump has engaged in unprecedented abuses — both in terms of the number of times he’s skirted Senate confirmation votes and the legal contortions he has employed to promote lower level officials to top acting positions. For example, Cuccinelli’s appointment as acting head of USCIS is unlawful under the FVRA, and my organization, Protect Democracy, has challenged his appointment in court. The Trump administration’s refusal to nominate cabinet-level officials has affected DHS in particular. The majority of the top ranks at the agency are filled by acting officials, and five individuals have held the top role at DHS since 2017. President Trump has filled just 41% of all positions within DHS that require Senate confirmation.
This is not an unsolvable problem. Congress must increase its oversight of rudderless agencies and call on the Trump administration to explain its inordinate use of temporary, acting leadership. Congress should require the executive branch to establish and maintain an automatically updated public list of individuals serving in each position requiring Senate confirmation, along with the legal authority under which they are serving. Congress should also restrict the manner in which an agency secretary may alter that department’s order of succession. And Congress should reform the FVRA to close loopholes that allow nominees to escape the statute’s intent and avoid the Senate’s constitutional responsibility to approve those who are nominated to serve at the highest levels of government.
If it chose to, Congress could go so far as to withhold agency funding until the President puts forth nominees. DHS has requested $51.7 billion in discretionary funding for Fiscal Year 2020, and there ought to be a Senate-confirmed leader who is accountable for how those taxpayer dollars are used.
When a president is as determined as President Trump to abuse his power, Congress must remain just as determined to exercise its power as a co-equal branch of government, and reassert its constitutional role to provide advice and consent for critical leadership positions.
Justin Vail is a policy advocate with Protect Democracy.