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Written by: Federal Practice Group
Written by: Federal Practice Group

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Experts in federal law are warning the White House against naming acting U.S. Citizenship and Immigration Services Director Ken Cuccinelli to replace Kevin McAleenan as head of the Department of Homeland Security because it would violate U.S. law and the Constitution.

Cuccinelli is a Republican politician said to be on President Trump’s short list for McAleenan’s job. However, legal scholars and lawyers say there is no legal means by which he could become acting secretary. What's more, they also believe the Trump administration overreached in July by inserting him at a Homeland Security agency.

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.

Cuccinelli does not meet the first two requirements and was installed at USCIS in June; therefore, he did not work any days prior to Kirstjen Nielsen’s resignation in April. Any time worked under McAleenan is irrelevant because McAleenan was not nominated and confirmed as secretary, Vladeck added.

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.

Debra D’Agostino, founding partner of Washington-based Federal Practice Group and head of its federal employment law team, said the issue is not just whether Cuccinelli can be promoted, but also his appointment to USCIS earlier this year.

Then-Director L. Francis Cissna left USCIS in late May. D’Agostino said the rightful temporary successor of the 19,000-person agency should have been USCIS Deputy Director Mark Koumans, the highest-ranking official. Instead, McAleenan announced Cuccinelli was being brought in to fill a principal deputy director role that was created after Cissna’s departure.

“They created this principal deputy position that had never existed before, decided it didn’t need confirmation, shoved him in it, and they almost immediately made him acting director,” said D’Agostino. “It’s supposed to be first assistant at the time the vacancy was created, not a quick move after the fact. The law actually says first assistant at the time the vacancy came into existence.”

“His entire appointment there violates the spirit of the law,” she added.

Joseph-O’Connell, whose work focuses on administrative law and the federal bureaucracy, described it as a “workaround,” saying the White House appeared to have “undermined” the vacancies act. “I think that’s what’s most troubling,” she said.

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.

“[T]hese seemingly unprecedented measures appear to have been taken specifically to install an individual that the Senate had not, and would not have, confirmed, in derogation of the separation of powers. Mr. Cuccinelli therefore unlawfully holds the office of Acting Director,” the letter states.

In September, the group submitted a complaint that alleges Cuccinelli’s appointment to USCIS was in violation of the vacancies law, as well as the appointments clause in the Constitution.

Vladeck said the complaint made a “substantial argument,” adding that as good a case as they make, it pales in comparison to how “clear-cut” a challenge would stand against Cuccinelli if Trump appointed him acting DHS secretary.

Democracy Forward did not respond to a request for comment, but Joseph-O’Connell said they will have to show standing, or how Cuccinelli’s appointment is specifically harming people, suggesting this may be a problem.

“USCIS has been very strategic in how they’re issuing policies. The public charge rule, it was not signed by Cuccinelli — it was signed by McAleenan,” she said. The complaint states Cuccinelli was the mastermind behind policies that have harmed specific migrants.

D’Agostino said an illegal appointment would be concerning in and of itself, but because Cuccinelli has been especially active changing a variety of immigration policies, it has provoked some immigration groups to sue over his policies, as well as his legal ability to change those policies. That could open up a bigger can of legal problems for DHS if Cuccinelli was made chief of the 240,000-person department and gained more control.

“If he has no real authority to be in that position, I mean, my goodness, everything he did could come undone,” said D’Agostino. “That’s the risk here. And I mean, oh my goodness, could Homeland Security be any more critical?”

Attempts to obtain comment from the White House and USCIS were unsuccessful.

To consult with an immigration lawyer DC area residents believe in, reach out to The Federal Practice Group and schedule your appointment.

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