Donald Trump has been advised he can’t legally name either of his final choices to be the acting head of the Department of Homeland Security thanks to an obscure government regulation.
The president had been eyeing Ken Cuccinelli, who’s leading the U.S. Citizenship and Immigration Services, or Mark Morgan, the head of Customs and Border Protection, for the gig.
But federal regulations that govern filling vacancies states that acting officials in cabinet-level positions must either be next in line for the job or hold a Senate-confirmed position.
Donald Trump has been told he can’t name either of his final choices to be the acting head of the Department of Homeland Security
Neither Ken Cuccinelli, who’s leading the U.S. Citizenship and Immigration Services, nor Mark Morgan, the head of Customs and Border Protection, are eligible to be acting Department of Homeland Security secretary
Neither man is next in line to be secretary.
Additionally, both men are serving in their jobs on an acting basis and, given that Trump has not formally nominated to their respective jobs, neither have faced Senate confirmation. Therefore, they cannot serve as head of DHS on an acting basis, the Wall Street Journal reported.
Acting DHS Secretary Kevin McAleenan submitted his resignation last month but is staying on until the end of October.
The president was looking to name another acting chief until he can nominate someone permanently to the position.
White House Director of Presidential Personnel Sean Doocey recently gave Trump a list of other officials to consider for the gig, including senior DHS staffer Chad Wolf and Transportation Security Administration chief David Pekoske, Politico reported.
McAleenan was the temporary replacement for Kirstjen Nielsen, who resigned as DHS secretary in April.
He was the fourth person to hold the top job and, before becoming acting secretary, McAleenan served as commissioner of U.S. Customs and Border Protection, a position that was confirmed by the Senate.
Chris Krebs, head of the Cybersecurity and Infrastructure Security Agency, is also under consideration, the Journal reported.
Wolf, meanwhile, was chief of staff to Nielsen.
Hard liners on immigration oppose his elevation to the job, which oversees immigration and border policy for the administration.
Nielsen was a frequent target of Trump’s anger over her inability to cut down on the number of illegal border crossings and to get his signature wall built. She also had to implement his controversial family separation policy.
Wolf is seen by some as too close to Nielsen.
Wolf also was a registered lobbyist for the National Association of Software and Service Companies, which represents Indian and U.S. companies that try to bring in workers via the H-1B visa program, which is for those with advanced degrees, Politico noted.
Trump has been critical of that program.
Cuccinelli, in contrast, has been more of a hawk on immigration policy. He tried to push through a policy that would deny green cards for immigrants who will likely to need legal public welfare services – such as food stamps, Medicare or housing assistance.
Acting DHS Secretary Kevin McAleenan submitted his resignation last month but is staying on until the end of October
McAleenan was the temporary replacement for Kirstjen Nielsen, who resigned as DHS secretary in April.
A federal judge in New York struck down the policy earlier this month.
Trump announced on Twitter the week before last that McAleenan was leaving his administration.
‘Kevin now, after many years in Government, wants to spend more time with his family and go to the private sector,’ Trump wrote on Friday, October 11.
‘I will be announcing the new Acting Secretary next week. Many wonderful candidates,’ he said.
Appointing Cuccinelli or Morgan would violate the Federal Vacancies Reform Act, a 1998 law that describes three tests for sidestepping the Senate confirmation process and naming someone as ‘acting’ secretary of a Cabinet agency.
Meeting any one of them makes a person eligible, but neither Cuccinelli nor Morgan would qualify.
Trump is said to be eager to announce a new acting secretary before MaAleenan leaves, hoping to maintain momentum on his border wall and changes to asylum requirements.
The U.S. Constitution requires that Cabinet secretaries must be confirmed by a vote of the U.S. Senate. But presidents can fill vacancies for up to 210 days with eligible officials.
By default, the second-in-command official becomes the ‘acting’ leader when a secretary or acting secretary resigns.
But Trump could choose anyone in his administration who the Senate has approved for another position.
The third option is to appoint a senior official – someone who ranks in an agency’s top salary tier – but only if that person held the job for at least 90 days during the year before the departing secretary leaves.
Both Cuccinelli and Morgan took their Homeland Security jobs most than 90 days ago. But McAleenan himself is an ‘acting’ secretary, a status that writes him out of the equation.