Grassley to Trump: No, you can’t use the Vacancies Act to make Cuccinelli DHS Secretary

Give the White House full marks for cleverness, but perhaps a demerit or two for trying this hard to work around a nominally friendly Senate. With Kevin McAleenan departing as acting Homeland Security Secretary tomorrow, Donald Trump wants to install a hardliner in his place, even if it’s just temporary. Rather than appoint someone to fill the slot left open since Kirstjen Nielsen’s departure in April, the Trump administration has looked into ways of installing someone as acting Secretary without all that pesky confirmation business:

After Kevin K. McAleenan, the acting secretary who had a tumultuous relationship with the White House, announced this month that he would resign, it was widely believed in the administration that Mr. Trump would tap someone who would not question his more extreme policies. Mr. McAleenan has said he will step down on Thursday.

But officials leading agencies in homeland security who echo Mr. Trump’s fiery language on immigration were initially deemed ineligible under the federal Vacancies Act. The law states that acting officials who take over cabinet-level positions must be next in the line of succession, have the approval of the Senate or have served 90 days under the previous secretary.

The White House, however, is exploring a loophole in the law, according to an administration official. Under this route, the White House would tap someone to be the assistant secretary of the Countering Weapons of Mass Destruction Office, which is vacant, and then elevate that person to be the acting secretary of homeland security.

The chief of that office is known as an “inferior officer,” and under an exception in the laws governing appointments, such officials can be appointed to acting positions with the sole approval of the president, the official said.

If this seems like an odd way to pass the time at the White House, you’re not alone. Trump has a Republican Senate that can confirm any nominee on a simple majority vote, thanks to Harry Reid’s rule changes in 2013. All Trump has to do is nominate a credible candidate for the position and his GOP allies can carry the ball across the line in a few weeks. For those who are offering criticism of Trump over Ukraine, such a vote would demonstrate their overall loyalty to the GOP’s immigration goals.

So why has Trump stalled on an appointment? It’s because he’s worried that his prime candidate would never get even 50 Senate votes. Trump has made clear his preference for former Virginia Attorney General Ken Cuccinelli, who has advocated for hardline policies in border security and fits fully within MAGA Country. Unfortunately for both Cuccinelli and Trump, the prospective candidate burned his bridges with Senate Republicans by championing primary challenges to caucus leaders, and that makes Cuccinelli persona non grata:

President Donald Trump wants Cuccinelli, who most recently led the anti-establishment Senate Conservatives Fund, to be director of the U.S. Citizenship and Immigration Services. But there may be nobody in Washington whom McConnell and his allies would take more pleasure in defeating, and the bottom line is Cuccinelli has little chance of getting approved for the job, Republican senators said.

“He’s spent a fair amount of his career attacking Republicans in the Senate, so it strikes me as an odd position for him to put himself in to seek Senate confirmation,” said Sen. John Cornyn of Texas, who ran the GOP’s campaign arm for two election cycles. “It’s unlikely he’s going to be confirmed if he is nominated.”

Sen. John Thune of South Dakota, the Senate GOP’s chief vote-counter, called the bid “a long shot,” adding, “They’ll go forward with it or they won’t, but I will suspect he’ll have plenty of obstacles once he gets here.”

Cuccinelli got an appointment to a non-confirmation post at DHS, but that doesn’t yet put him in position for consideration as an acting Secretary. This Rube Goldberg-esque workaround using the Federal Vacancies Reform Act is their best path to getting several months of Cuccinelli without Senate approval.

Chuck Grassley threw a flag on that formation today:

President Trump is seeking an end-around to appoint the immigration hardliner to the position, and Cuccinelli is loathed by Senate Majority Leader Mitch McConnell (R-Ky.) and other Republicans to the point that he probably could not be confirmed. And Grassley, the most senior Republican, said there is no legal way to put the acting U.S. Citizenship and Immigration Services chief in the position as acting chief after acting DHS Secretary Kevin McAleenan leaves his post on Thursday.

“There’s some opposition to Senate confirmation. I have not heard anything about some go-around. But it’s my understanding that the existing law would not permit him to” lead the organization, Grassley said in an interview. “I don’t know how you get around that. I don’t think it’s possible because of what the law says, not because of anything else.”

House Homeland Security chair Bennie Thompson demanded that the White House make its desires known in the usual manner — by appointment. If they can’t find someone to appoint after six months of searching and a friendly Senate ready to confirm, Thompson added, that speaks to the White House’s competence:

“If the White House cannot find anyone qualified and suitable to run the Department of Homeland Security – or even run it in an acting capacity – something is very wrong with this Administration,” Thompson said on Wednesday morning.

Clearly, Cuccinelli is not happening no matter how much Trump desires him for the job. Rather than look for byzantine workarounds, it would be better to just get the position filled while Senate Republicans are motivated to expedite the confirmation.

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