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Sunday night, President Trump announced his intention to designate Kevin McAleenan, the current head of US Customs and Border Protection, as the acting secretary of homeland security after Kirstjen Nielsen’s resignation.
But legal experts question whether he has the authority to do that.
As we’ve seen with earlier Trump vacancies, the president typically has broad latitude to designate any Senate-confirmed official he’d like to serve in an acting role. Previous presidents have typically stuck with fairly intuitive chain of command principles in these situations, and Trump’s tendency to deviate from that norm has sparked litigation, but Trump, so far, has always come out ahead.
....I am pleased to announce that Kevin McAleenan, the current U.S. Customs and Border Protection Commissioner, will become Acting Secretary for @DHSgov. I have confidence that Kevin will do a great job!
— Donald J. Trump (@realDonaldTrump) April 7, 2019
In designating McAleenan, though, he appears to be on dicier legal footing, according to a number of observers, including Stanford law professor Anne Joseph O’Connell, an expert on vacancies.
The key issue is 6 USC §113(g) from the statute governing the Department of Homeland Security, which contains language that overrides the Federal Vacancies Reform Act, the law that typically dictates appointing acting officials. The statute states that if an acting secretary is needed because of a vacancy in the secretary of homeland security position, the undersecretary for management becomes the acting secretary:
(g)Vacancies
(1)Absence, disability, or vacancy of Secretary or Deputy Secretary
Notwithstanding chapter 33 of title 5, the Under Secretary for Management shall serve as the Acting Secretary if by reason of absence, disability, or vacancy in office, neither the Secretary nor Deputy Secretary is available to exercise the duties of the Office of the Secretary.
(2)Further order of succession
Notwithstanding chapter 33 of title 5, the Secretary may designate such other officers of the Department in further order of succession to serve as Acting Secretary.
(3)Notification of vacancies
The Secretary shall notify the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security of the House of Representatives of any vacancies that require notification under sections 3345 through 3349d of title 5 (commonly known as the “Federal Vacancies Reform Act of 1998”).
Under this read of the plain language, Claire Grady, the undersecretary for management, is now acting secretary of homeland security, and Trump has no discretion in the matter.
It’s not clear this is important
Fans of Trump-era legal controversies may recall that we’ve had two bouts of litigation about vacancy designations earlier in the Trump administration:
- When Richard Cordray resigned as director of the Consumer Financial Protection Bureau, Trump tapped Mick Mulvaney to serve as acting director while Democrats argued the acting job should go to Cordray’s deputy.
- When Trump fired Jeff Sessions, he designed Matthew Whitaker as acting attorney general, thus bypassing Rod Rosenstein and other higher-ranking officials.
In both cases, Trump successfully argued that the Federal Vacancies Reform Act — with its broad delegation of discretion to the president — is the controlling statute, and that agency-specific language designating a succession order is just a default that the president can override at will. The homeland security case is different because the statutory language specifically designated the undersecretary for management notwithstanding FVRA, suggesting that in this case, the president really has no choice.
But another big difference in this case is that it’s not clear this is important.
The CFPB litigation was about partisan control of the agency. Cordray was an Obama appointee with a term that extended into Trump’s time in office. Democrats were trying to keep the agency in the hands of a Cordray loyalist rather than turning it over to Trump’s band of merry deregulators.
And the DOJ litigation was fundamentally about special counsel Robert Mueller. Rosenstein was known to be protective of the Mueller inquiry — in fact, he appointed Mueller in the first place — and Trump bypassing him in favor of a lightly qualified loyalist was seen as an effort to gain control over Mueller.
In the case of McAleenan versus Grady, by contrast, there are no particularly obvious policy stakes. They are both more or less homeland security professionals (his background is in airport stuff, hers in the Coast Guard) who were tapped for political positions by John Kelly and presumably align well enough with Trump philosophically to still be around in important jobs.
Even to the extent that there are policy differences between them, there’s no equivalent to the special kind of Mueller oversight role or big question about which party runs an agency in play.
No matter who serves as acting secretary, it’s going to be Donald Trump’s Department of Homeland Security — for better or worse.
