Trump Keeps Bypassing The Senate By Appointing Officials In An Acting Capacity

So much for "advice and consent."

WASHINGTON ― President Donald Trump this week named former Virginia Attorney General Ken Cuccinelli acting director of U.S. Citizenship and Immigration Services, the agency in charge of legal immigration.

With Cuccinelli’s installation, there are now six high-level government officials serving in an acting capacity, an unusually large number that flies in the face of the Senate’s advise-and-consent role under the Constitution.

Those positions include several roles at the Department of Homeland Security ― such as its acting secretary, Kevin McAleenan, as well as the heads of U.S. Immigration and Customs Enforcement, U.S. Customs and Border Protection and the Federal Emergency Management Agency.

Patrick Shanahan, meanwhile, is still serving in an acting capacity as secretary of the largest federal agency, the Department of Defense. The administration has not formally submitted his nomination to the Senate yet, despite announcing it would do so last month.

Most of those serving in acting positions haven’t simply been passive placeholders for future successors. Rather, they’re playing key roles enacting the Trump administration’s policies, especially when it comes to key immigration issues ― all without being officially confirmed by the Senate.

“I like ‘acting’ because I can move so quickly,” Trump said in February. “It gives me more flexibility.”

Senate Republicans have largely been happy to let Trump run the government this way because they’ve agreed with his choices for top posts. That changed this week, however, after Trump tapped Cuccinelli, an immigration hard-liner, to lead USCIS. 

Cuccinelli previously served as president of the Senate Conservatives Fund ― a group that repeatedly attacked Senate Majority Leader Mitch McConnell (R-Ky.) and other establishment Republican senators as insufficiently conservative, and funded various GOP primary challengers from the right.

“He’s made a career of attacking other Republicans and frankly attacking President Trump, so I doubt he’ll have the support to get confirmed,” Sen. John Cornyn (R-Texas) told reporters this week.

Former Virginia Attorney General Ken Cuccinelli.
Former Virginia Attorney General Ken Cuccinelli.

But there’s little Republicans can actually do to block Cuccinelli from serving at the agency, thanks to a loophole Trump exploited in the Federal Vacancies Reform Act of 1998.

The law lays out a procedure for filling a vacancy in the executive branch during the time before a permanent replacement is appointed. It was meant to give presidents some flexibility in finding a suitable replacement when a high-ranking official steps down. But Trump appears to be taking this accommodation to the extreme.

Cuccinelli was named to a brand-new position of “principal deputy director,” allowing him to circumvent the law and become acting secretary despite having no prior experience in federal government or USCIS. He can remain in the position for 210 days unless Trump decides to formally nominate him later on.

Steve Vladeck, a law professor at the University of Texas, said that Cuccinelli’s appointment violates the spirit of the law passed by Congress. From Vladeck’s post on Lawfare

Cuccinelli’s appointment is probably not an outright violation of the FVRA. But in that respect, it only underscores how poorly drafted the FVRA is ― and how easy it is for administrations not as readily subject to conventional political checks to take advantage of its open-endedness. By this logic, nothing would prevent naming anyone, at any time, to run almost any senior agency for as long as the FVRA allows ― a minimum of 210 days and perhaps more depending on when a permanent successor is nominated.

Some Republicans expressed concerns about Trump’s reliance on acting positions ― but they came from familiar corners in the GOP. 

“I think it’s unfortunate that so many officials are in an acting capacity,” said Sen. Susan Collins (R-Maine), who frequently speaks out against Trump. “It circumvents the advise and consent role of the Senate and makes accountability and oversight more difficult.”

Sen. Mitt Romney (R-Utah) expressed a similar view, saying that “we’ll ultimately have advise and consent with regards to him and others who are still acting. There is a time frame where an acting person can be involved, and it’s not forever.”

Democrats, meanwhile, said Trump’s reliance on officials who serve in acting roles reflects poorly on his administration. 

“To have so many people in acting roles reflects the president’s own lack of confidence in his team,” Sen. Richard Blumenthal (D-Conn.) said. “It’s a failure to make the kind of executive decisions that are involved in basic governance.”