Judge rules Cucinelli unlawfully appointed to run DHS
A federal judge ruled that Ken Cucinelli, a key policy advisor for Trump’s hardline immigration policies, was unlawfully appointed to leadership positions at DHS… twice.
Judge Randolph Moss ruled that Cucinelli was appointed unlawfully as acting director for USCIS. He then reached the same conclusion for Cucinelli’s current position as Deputy Director of DHS. At issue is the Federal Vacancies Reform Act, which regulates who the president can appoint to agency positions without Senate confirmation. The FVRA gives the president three options with which to temporarily fill vacancies in senior government positions: (1) the president may choose the “first assistant” to the vacant office, (2) choose anyone currently holding a Senate-confirmed position in the executive branch, or (3) choose a non-Senate-confirmed senior employee who has been serving in the same agency as the vacant office for at least 90 of the previous 365 days.
As Professor Steven Vladeck explained on lawfareblog.com several months ago, President Trump has advanced creative interpretations of the FVRA to appoint Mick Mulvaney as acting director of the Consumer Financial Protection Bureau, Robert Wilkie as acting secretary of veterans affairs, and Matthew Whitaker as acting attorney general. He continues,
“the Cuccinelli appointment is taking advantage of an entirely different—and more problematic—loophole. Although the director of USCIS holds an office created by statute, the same does not appear to be true of the deputy director. Instead, that position is an internal position created by executive branch regulation (and currently held by Mark Koumans, who, as the “first assistant” until now, had been serving as acting director of USCIS for the past week). Apparently, Cuccinelli has been named to the brand-new position of principal deputy director of USCIS, a role that, so far as I can tell, did not exist before today. Presumably, the new staff position of principal deputy director will supersede the deputy director as the first assistant for purposes of the FVRA. In other words, through nothing other than internal administrative reshuffling—creating a new position and deeming it the first assistant—the Trump administration was able to bootstrap Cuccinelli into the role of acting director, even though, until today, he had never held any position in the federal government.
Judge Moss similarly found that President Trump’s administration created Cuccinelli’s first title, principal deputy director, in order for him to qualify to lead the agency in an interim status but title creation did not actually qualify him. “Cuccinelli may have the title of Principal Deputy Director, and the Department of Homeland Security’s order of succession may designate the office of the Principal Deputy Director as the first assistant’ to the Director,” he wrote. “But labels — without any substance — cannot satisfy the FVRA’s default rule under any plausible reading of the statute.”
Importantly, Judge Moss’s order strikes down directives from Cuccinelli that sped up asylum-seekers’ initial screenings limited extensions of those hearings, on the grounds that Cuccinelli lacked authority to issue them. Read the full text of the order here.
UPDATE 3/2/2020: The lawsuit challenging Cuccinelli’s appointment was brought by the pro-immigration advocacy groups Democracy Forward and the Catholic Legal Immigration Network on behalf of an immigration legal center and seven asylum-seekers. DHS intends to appeal Judge Moss’s ruling. It is unclear what the ruling means for Cuccinelli’s appointment, though it is widely believed that the Trump administration will not try to re-nominate Cuccinelli’s for a position requiring confirmation because of his unpopularity with leading Senate Republicans whose incumbency he challenged.
MHC