On Sunday evening, Kirstjen Nielsen resigned (perhaps at President Trump’s request) as Secretary of Homeland Security. After she did, the President quickly announced, via Twitter, that Kevin McAleenan, the current Commissioner for U.S. Customs and Border Protection, would serve as Acting Secretary of Homeland Security. But, as commentators quickly pointed out on Twitter, there’s a problem with this: the law doesn’t allow it. Perhaps in response, news reports today suggest that the President may be firing the person who should have taken over to clear the path for McAleenan. No matter how the particular shuffle at DHS gets sorted out, this debacle highlights a larger issue: President Trump has a pattern of ignoring the law to install acting officials of his own choosing.
There’s a law called the Federal Vacancies Reform Act (FVRA) that permits the President, in some circumstances, to temporarily fill offices that ordinarily can be filled only by individuals who have been confirmed by the Senate. But this is a default rule—one that applies in the absence of a more specific rule set out in the statute governing the agency at issue.
In the case of the Department of Homeland Security, the statute could not be clearer that the FVRA does not apply. It provides that “[n]otwithstanding chapter 33 of title 5”—meaning, regardless of the FVRA—“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.” Because there is currently neither a Secretary nor a Deputy Secretary, the Under Secretary for Management—who was Claire Grady at the time of Nielsen’s resignation—should have been next in line to serve as Acting Secretary of Homeland Security. (If there is no Under Secretary for Management, others can serve as Acting Secretary because the statute also provides that “the Secretary may designate such other officers of the Department in further order of succession to serve as Acting Secretary.”)
We don’t know why the President is trying to skip over Grady. Press reports suggest that Nielsen was ousted because she resisted Trump’s request that she “resume separating families,” which “[s]he told him . . . was now prohibited by court orders.” Perhaps the President thinks McAleenan will be more willing to go along with those requests. Perhaps he likes McAleenan better for reasons having nothing to do with DHS policy. Perhaps there’s no particular reason at all. We just don’t know.
What we do know is that the President shouldn’t be violating the law, whatever the reason. And, again, however the situation at DHS gets worked out, the President’s initial indication on Sunday evening that he was willing to ignore the law is only the most recent example of what has been a recurring phenomenon—when the President can’t get the official he wants in place by following the law, he simply ignores it.
Earlier this year, I wrote about another example of this practice—that one involving the Federal Housing Finance Agency (FHFA). As I wrote then, “[m]ost people may not be familiar with the FHFA, but it’s nonetheless incredibly important, because if it fails to do its job correctly, the effect on the nation’s economy can be devastating.” The statute governing the FHFA provides that “[i]n the event of the death, resignation, sickness, or absence of the Director, the President shall designate either the Deputy Director of the Division of Enterprise Regulation, the Deputy Director of the Division of Federal Home Loan Bank Regulation, or the Deputy Director for Housing Mission and Goals, to serve as acting Director until the return of the Director, or the appointment of a successor.” Yet President Trump didn’t designate any of those individuals. He designated Joe Otting, who didn’t waste any time, as I also wrote earlier, in making an “about-face on a major legal question” that had the potential to “fundamentally change the agency’s future.” Nearly three months later, Otting is still in charge at the FHFA.
And that was hardly the first example. When Jeff Sessions was forced to resign as Attorney General, the President appointed Matthew Whitaker to serve as Acting Attorney General, even though the Department of Justice’s organic statute provides that “[i]n case of a vacancy in the office of Attorney General . . . the Deputy Attorney General may exercise all the duties of that office,” and if “neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General,” then “the Associate Attorney General shall act as Attorney General.” The Deputy Attorney General at the time of Sessions’ resignation was Rod Rosenstein, not Matthew Whitaker.
And the President’s appointment of Mick Mulvaney to serve as acting Director of the Consumer Financial Protection Bureau (CFPB) was at odds with the law governing that Bureau, which provides that the Deputy Director “shall . . . serve as acting Director in the absence of unavailability of the Director.” Mulvaney served as temporary head of the Bureau for over a year before a new confirmed head took over, and during that time, he took numerous actions to undermine the CFPB’s critically important work to protect American consumers.
In sum, there is a troubling pattern of this President ignoring the law to put in place acting officials of his choosing. And whatever one thinks about the policies adopted by these acting officials, the fact that their appointments may be unlawful should disturb anyone who cares about the rule of law and principles of good government.