Vacancies Act may impede selection of DHS Acting Secretary
The Justice Department’s Office of Legal Counsel and a variety of legal experts are raising objection to the selection of several of President Trump’s top choices for Acting DHS Secretary.
Under the Federal Vacancies Reform Act of 1998, senior official vacancies must be filled by someone who meets one of three qualifications, said Stephen I. Vladeck, a professor at the University of Texas School of Law who focuses on federal jurisdiction and constitutional law. Any incoming acting secretary would need to be the natural next in line, like a deputy, be previously Senate-confirmed for another job, or have been working at the department 90 days of the 365 days prior to the last confirmed secretary’s departure.
Ken Cuccinelli, seen as a top prospect, does not meet the first two requirements and was installed at USCIS as Director in June; therefore, he did not work any days prior to Kirstjen Nielsen’s resignation in April. Stanford Law professor Anne Joseph-O’Connell said the Trump administration would not have grounds to make a case that the 90-day requirement started when McAleenan, not Nielsen, left, because McAllenan was not confirmed. Debra D’Agostino, founding partner of Washington-based Federal Practice Group and head of its federal employment law team, agrees and said the issue is not just whether Cuccinelli can be promoted, but also his appointment to USCIS earlier this year. The Democracy Forward Foundation, a Washington-based legal services organization created during Trump’s first year in office, sent a letter in July to Attorney General William Barr and U.S. Attorney for D.C. Jessie K. Liu asking for the removal of what they said was an unlawfully appointed officer and has now filed a complaint.
Other options reported by the NY Times include Mark Morgan, the acting commissioner of Customs and Border Protection (also possibly ineligible). David Pekoske, Department of Transportation, and Christopher C. Krebs, the director of the department’s cybersecurity agency, has also been floated as a temporary replacement for Mr. McAleenan but have stated they are not interested.
MHC