On Sunday, Secretary of Homeland Security Kristjen Nielsen resigned after overseeing one of the most controversial immigration policies in recent history. That same day, it was revealed that Kevin McAleenan the Commissioner of Customs and Border Protection would be replacing her as acting secretary. The next day, Ronald D. Vitiello, acting director of Immigration and Customs Enforcement was also asked to step aside and Randolph “Tex” Alles, Director of the Secret Service is said set to step down. All of this comes after Trump threatening to close the Mexican borders and pursue more aggressive immigration policies – starting with a purge of the DHS. There was also been talk of USCIS Director Francis Cissna being ousted by the end of the week and replaced with Julie Kirchner, the former executive director of the Federation for American Immigration Reform and current USCIS ombudsman as well as DHS general counsel John Mitnick. This did not happen but there is always next week.
For many who pay particular attention to this administration, the resignation of Nielsen, Vitiello, and Alles are a only few in a long line of turnovers. Reports of being forced out, resignations and firings are common inside the Trump Cabinet. What makes these resignations unique is the strategy to circumvent the checks and balances put in place. Federal law 6 U.S. Code § 113 states that the Under Secretary for Management will become the Acting Secretary if there is no Deputy Secretary available. By law, Under Secretary for Management Claire Grady would become Acting Secretary of Homeland Security. Yet the choice for Grady was obvious: be fired and replaced by Kevin McAleenan or resign. She resigned on Tuesday.
There are federal laws being exploited to empty and fill important positions with Trump loyalists and push out those who stand in the way. The Federal Vacancies Reform Act (FVRA) allows for the President to appoint any Senate-confirmed official in any acting role. In this way, Trump has acted within the boundaries of the law. It is the announcements, which skip Deputies that are the grey area. Mick Mulvaney, Matthew Whitaker, and now Kevin McAleenan were all examples of bypassing the Deputies. The uniqueness of Kevin McAleenan’s appointment and Claire Grady’s resignation lies in the wording of 6 U.S. Code § 113(g).
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.
The established chain of succession could not be circumvented with the usual approach of FVRA. Therefore, the only way that Trump’s pick could enter into the position was through the fortunate timing of Grady’s resignation. Grady was a Trump appointee with 28 years of experience with DHS, there is seemingly no reason for her resignation other than to make space for McAleenan.
Some of the nominations of acting officials have been during times of vulnerability in the Trump administration. It is important to note that acting Cabinet secretaries do not have to testify before Congress and they have almost all of the same actions as the Senate-confirmed officials. After the infamous resignation of Jeff Sessions, Deputy Attorney General Rod Rosenstein was looked over and Trump instead chose Matthew Whitaker to be the Acting Attorney General. Now that the position has been filled by Attorney General William Barr, it seems that this was a strategy to gain more executive power during the Mueller investigation. William Barr’s record with advocating for the increase in scope of presidential power has been well known since working under former president George H.W. Bush.
President Trump has gone on record declaring that he enjoyed the flexibility that an acting cabinet gave him as well as the ease to make moves. With around a quarter of his cabinet position being filled by acting officials, there is a constant cycling with Trump being the only form of leadership. Specifically for the DHS, there are mass resignations without candidates to replace them. Thus, the only form of accountability is towards Trump because no one else who remains long enough. FRVA has grace period of 210 days until Trump must nominate someone to hold the position permanently. If the permanent nominee is declined, the acting official can stay serve for another 210. They can serve for a third additional 210 days if the second nominee fails. For 210 days – or longer – the President of the United States is able to sideline the Senate ignore their constitutional role in giving advice and consent on senior government officials. It is troubling that there has been no active pursuit towards Senate confirmation when it is Republican-controlled.
Besides the crushing blow to constitutional checks and balances, having too many acting officials is making the government slow to a stand-still. There are no incentives for both acting and permanent officials to create long-term programs if there is no assurance that they will remain in their jobs. Senate-confirmed leaders typically have the experience and informal networks that help the government function. Inexperienced members are slower to enact programs and are unable to adequately engage employees. Authority comes from the permanence and experience in the position. The hollowing of leadership will also create a long-term standstill if multiple acting officials run out of their grace period. Getting a person approved can take a lot of time. A divided Congress will only serve to allow the acting official more time in office. It is essentially decentralized policy making with acting officials beholden to the President, without accountability, without long-term program incentives, and shifting power away from Congress.