A strange feature of President Donald Trump’s administration is the abundance of “acting” officials. Other presidents typically send major nominations to the Senate as quickly as possible so they can be confirmed and installed in as seamless a fashion as possible. Trump has eschewed that practice in favor of temporary appointments, which allows him to place pliable underlings throughout the federal government in makeshift roles. “I sort of like ‘acting,’” Trump told reporters last January. “It gives me more flexibility; do you understand that? I like ‘acting.’”
Last Sunday, the tactic finally came back to bite him. A federal judge in the District of Columbia ruled that the Trump administration had broken federal law by temporarily placing Ken Cuccinelli in charge of U.S. Citizenship and Immigration Services, or USCIS, the Department of Homeland Security agency that supervises the country’s naturalization system. To remedy the error, the judge struck down two major policy initiatives enacted by Cuccinelli since taking office.
Cuccinelli dismissed the judge’s ruling as an “outlier” in an appearance on Fox and Friends on Monday morning. “The Trump administration has been somewhat frustrated with how long it takes to get people through the Senate,” he claimed. “That Democrats in the Senate have imposed a record number of blocks on those nominees.” In reality, it was not Democrats who scuttled his chances before the Republican-led Senate. But the scuffle shows how Trump’s lackadaisical approach to filling vacancies, as well as his sluggishness with sending qualified nominees to the Senate, hinders his policy agenda.
Sunday’s ruling came in a lawsuit over asylum policies that were enacted on Cuccinelli’s watch. The plaintiffs are two Honduran women who separately fled to the United States with their daughters after suffering sexual abuse in that country. They arrived at the U.S. border with Mexico one month after Cuccinelli had taken over USCIS, and during that time he had made a series of changes to the asylum process. One change gave asylum-seekers only 24 hours to consult with lawyers after arriving at the border; another change forbade immigration officers from granting time extensions unless there were extraordinary circumstances to justify taking the step. Those constraints, the women told the court, made it impossible for them to demonstrate that they had a “credible fear” of danger if they were denied asylum.
Cuccinelli was in position to enact such restrictive changes only by a feat of bureaucratic legerdemain. The director of USCIS is one of the top-level executive-branch positions that requires a presidential nomination and Senate confirmation to fill. Under the Federal Vacancies Reform Act, when those positions become vacant, their duties are carried out by the “first assistant” in that office—typically a deputy director or some other high-ranking official—until a permanent replacement is confirmed by the Senate. Congress enacted the law so that government agencies could continue to function smoothly while senators consider nominees.
When former USCIS director Lee Cissna resigned last June, however, Cuccinelli wasn’t the agency’s deputy director. That position was held by Mark Koumans, who normally would have served as the agency’s acting director after Cissna’s departure. Instead, Cuccinelli was hired less than a week later to the role of “Principal Deputy Director.” That same day, the acting secretary of Homeland Security revised DHS’s order of succession to make Cuccinelli’s new gig, which had never existed before and would cease to exist once the director’s job was filled, the new “first assistant.”
The switcheroo drew a rebuke from Judge Randolph Moss, who contrasted Cuccinelli’s situation with that of The Office character Dwight Schrute, an obsequious paper salesman who is obsessed with his place in the workplace hierarchy. “To borrow from a long-running riff on the television show The Office, there may well be a difference between one who serves as ‘the assistant regional manager’ and ‘the assistant to the regional manager,’” Moss wrote. “But either way, that person is, at best, second in command. Here, the acting secretary created a position that is second in command in name only.”
Why the sleight of hand? It’s doubtful that Cuccinelli, who previously served as Virginia’s attorney general, will be able to get a Senate-confirmed position any other way. A staunch conservative and a regular Fox News guest, Cuccinelli enthusiastically championed Trump’s restrictive immigration policies inside and outside government. He is, however, held in particularly low esteem on Capitol Hill due to his previous work leading the Senate Conservatives Fund, a political group that funded hard-right primary opponents against Republican lawmakers. Among its past targets was Senate Majority Leader Mitch McConnell.
The Trump administration argued that Cuccinelli’s appointment fell within the letter of the law. Moss found, however, that it abided by neither the letter nor the spirit of the statute. He noted that some of the Federal Vacancies Reform Act’s provisions were ambiguous about who counts as the “first assistant” and when that designation kicks in. “Now is not the time to resolve that question because Cuccinelli’s appointment fails to comply with the FVRA for a more fundamental and clear-cut reason: He never did and never will serve in a subordinate role—that is, as an ‘assistant’—to any other USCIS official,” Moss wrote. “For this reason alone, [the administration’s] contention that his appointment satisfies the FVRA cannot be squared with the text, structure, or purpose of the FVRA.”
Moss resolved the error by setting aside Cuccinelli’s rule changes and ruling that the Honduran women who brought the lawsuit could not be deported without a proper hearing. But he declined to extend his ruling to cover other asylum-seekers who went though the process under Cuccinelli’s framework, citing procedural barriers. That will limit the decision’s impact unless other asylum-seekers file lawsuits of their own. New asylum-seekers, however, appear to be temporarily benefiting from the changes. According to BuzzFeed News’s Hamed Aleaziz, USCIS began instructing officials to ignore the asylum directive handed down by Cuccinelli last June.
It’s unclear whether any of Trump’s other “acting” officials may face similar legal challenges. Last January, lawyers asked the Supreme Court to intervene and determine whether then-acting Attorney General Matthew Whitaker had lawfully been installed in that position. For Trump, the best decision would be to take the Senate’s advise-and-consent powers more seriously and work to install nominees on sound legal footing. For Congress, an even better decision would be to reform federal vacancies laws like the FVRA so that future presidents can’t abuse powers that lawmakers gave up far too freely.