Trump official says the president's plans for the next DHS secretary would violate the law: report

Trump official says the president's plans for the next DHS secretary would violate the law: report
Ken Cuccinelli by Gage Skidmore

Since President Donald Trump ousted Homeland Security Secretary Kirstjen Nielsen, the department overseeing his highest-priority issue — immigration law enforcement — has been in flux and chaos. And it looks like the president is still struggling to wrest control of the department.

According to a Wall Street Journal report on Monday, Trump would like to replace outgoing acting Secretary Kevin McAleenan, who submitted his resignation this month, with either acting Director of the Citizenship and Immigration Services Ken Cuccinelli or acting Commissioner of U.S. Customs and Border Protection Mark Morgan.

But, the report said, White House director of Presidential Personnel Sean Doocey told Trump that neither Cuccinelli nor Morgan are eligible for the role under federal vacancies law: It explained:

The federal statute that governs vacancies states that acting officials in cabinet-level positions must either be next in line for a position or hold a Senate-confirmed position.

Under a third option, the official being elevated must have served for at least 90 days in the past year under the previous Secretary. Mr. Doocey has concluded, based on an opinion from the Justice Department’s Office of Legal Counsel, that the past secretary was Ms. Nielsen, not Mr. McAleenan.

In April, Trump ousted Nielsen from the head of the department, it seems, because she pushed back on some of his more reckless or even potentially illegal plans for immigration policy. The New York Times recently reported that he had suggested border agents should shoot migrants in the legs if they attempted to enter the country without authorization.

While even Morgan and Cuccinelli might not let the president go that far, it's clear that Trump sees them as closer ideological allies on the topic of immigration than Nielsen, despite the fact that she was far from being a bleeding-heart liberal. The Times report also suggested that Trump had display open misogyny toward Nielsen.

Trump has faced criticism for skirting federal vacancies laws before. Lawfare's Steve Vladeck argued that though Cuccinelli's appointment to his current position "may not violate the plain letter of the FVRA, it certainly can’t be reconciled with the law’s spirit." And many credibly argued that Trump's 2018 appointment of Matthew Whitaker as acting attorney general was illegal.

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