Is Trump's appointment of an acting DHS secretary legal?

Pretty clearly the answer is no, as his old friend “Mr. Kellyanne Conway” demonstrated on Twitter earlier this morning.

By now, given the mind-boggling rate of turnover in Trump’s administration, we should all be old pros when it comes to the Vacancies Reform Act. That’s the law that allows the president to lateral people who have already been confirmed by the Senate for one high-ranking job into a different newly vacant high-ranking job without the need for new Senate confirmation (for 210 days). It came up when Trump installed OMB chief Mick Mulvaney as head of the CFPB; it came up when he replaced David Shulkin as head of the VA; it came up more than once during his interminable grousing about Jeff Sessions, with Scott Pruitt once considered as a potential interim AG while he was head of the EPA before Matt Whitaker ultimately got the nod.

A president who’s hard to work for and who chafes at needing Senate permission for his top appointees naturally likes being able to dismiss one disfavored official and instantly replace them with someone to his liking without any near-term requirement of Senate confirmation. Whether the VRA lets him do that isn’t always an easy question, though. For instance, the DOJ has its own rules about who should act as Attorney General when there’s a vacancy at the top. If the DOJ statute says one person gets to be the interim AG and the president tries to appoint a different person under the VRA, which law controls? That’s a knotty problem for a court, one that’s rarely come up because most presidents don’t have such difficulty working with their own appointees that the people next in line for an office when vacancies arise might consistently be viewed as unsuitable for those roles by the White House.

In this case, though, the problem isn’t knotty. The statute that created the Department of Homeland Security specifically says that the VRA doesn’t give the president power to name the acting secretary of his choice:

(g) Vacancies
(1) Absence, disability, or vacancy of Secretary or Deputy Secretary
Notwithstanding chapter 33 of title 5, 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.

Chapter 33 of title 5 is the VRA. The DHS statute is telling you in its own words that Congress wanted this statute, not that one, to control. Since there’s not only no secretary but no deputy secretary right now, that means Claire Grady, the undersecretary for management, is the new acting secretary. It’s not just Conway who reads the statute that way either: Law prof Anne Joseph O’Connell, a legal expert in vacancies, sees it that way too.

But what if Trump knows all of this and already has Grady’s assurance that she’ll step down, clearing the way for his designated choice, Kevin McAleenan? Unlikely, says the NYT:

The president said in a tweet that Kevin McAleenan, the commissioner of Customs and Border Protection, would take over as the acting replacement for Ms. Nielsen, who became the sixth secretary to lead the agency in late 2017. But by law, the under secretary for management, Claire Grady, who is currently serving as acting deputy secretary, is next in line to be acting secretary. The White House will have to fire her to make Mr. McAleenan acting secretary, people familiar with the transition said. Ms. Grady has told colleagues that she has no intention of resigning to make way for Mr. McAleenan.

If he fires Grady, all three top positions at DHS will be vacant. The strongman president will have completely decapitated the Homeland Security department. The lay of the land:

It’s not minor departments that are suffering the vacancies either. It’s Defense and DHS, and until very recently DOJ had an acting head as well. The president’s own chief of staff is still technically in an acting role.

All of which puts in perspective McConnell’s decision to go nuclear last week on the number of hours allotted for debate before confirmation votes on presidential nominations. That decisions applies only to sub-cabinet appointees; the eventual confirmation of Nielsen’s successor will still get 30 hours of debate instead of the two prescribed under the new rule. But as you can see from the Grady/McAleenan drama, there are plenty of important vacancies out there below the cabinet level, starting with deputy secretary of DHS, that need filling as well. Whether he meant to do so or not, McConnell’s change may have encouraged Trump to start firing high-ranking sub-cabinet officials in the expectation that the Republican Senate will now quickly approve his designated successors. The sheer volume of positions to fill and the anxiety felt among Senate Republicans about alienating Trump and his base before next fall may leave them feeling that they have little choice but to rubber-stamp them to keep the conveyor belt moving. You can be picky about confirming only “the best people” at the start of an administration. In year three, when officials in key slots are quitting or getting fired left and right, you’re down to looking for … people, period.

The rumor, by the way, is that former anti-Trumper Ken Cuccinelli is the top candidate to replace Nielsen as Trump’s permanent choice. Populists prefer Kris Kobach, but there are probably enough dings against him by now to scare off a few moderate Senate Republicans on a confirmation vote.