Department of Homeland Security

The Federal Vacancies Reform Act Under Trump: The Department of Homeland Security Edition

By Steve Vladeck
Tuesday, April 9, 2019, 6:30 AM

To quote Yogi Berra, “it’s like déjà vu all over again.” For at least the fourth time in just over two years, a dispute has arisen over the president’s authority to name “acting” agency heads under the Federal Vacancies Reform Act (FVRA) of 1998. This time around, the debate involves the Department of Homeland Security—and the resignation/firing/un-resignation/ ¯\_(ツ)_/¯ of Secretary Kirstjen Nielsen.

As folks likely know by now, late Sunday, Nielsen, who’s had a tumultuous 16-month tenure as homeland security secretary, purported to resign (perhaps upon being told she’d be fired) “effective April 7th 2019.” Nielsen tweeted a copy of her resignation letter to at 7:02 p.m. Eastern time, one full hour after President Trump tweeted that she would be stepping down and that he was naming Kevin McAleenan, the Commissioner of Customs and Border Protection (CBP), as the acting secretary of homeland security.

Three and a half hours later, at 10:36 p.m. Eastern time, Nielsen tweeted again, this time stating that she has “agreed to stay on as Secretary through Wednesday, April 10th to assist with an orderly transition and ensure that key DHS missions are not impacted.” By that point, it had perhaps become clear to the White House that there was a serious legal obstacle to the president’s effort to install McAleenan as acting secretary, in the form of an obscure provision of the Homeland Security Act, 6 U.S.C. §113(g). For the moment, then, it appears that Nielsen is (still) the secretary of homeland security, at least through the end of the day on Wednesday, April 10.

What happens on Thursday could have been messy. Presumably, President Trump was relying upon the FVRA in naming McAleenan as acting secretary. That statute authorizes the president to name as acting secretary any Senate-confirmed government officer and any other senior DHS employee who has been with the department for at least 90 of the previous 365 days. McAleenan qualifies under either of those provisos; he has served in the department since Jan. 20, 2017, and the Senate confirmed him to his current post as CBP Commissioner on March 19, 2018. And President Trump relied upon the same statute to name Mick Mulvaney as acting director of the Consumer Financial Protection Bureau and Matthew Whitaker as acting attorney general. So far, so good.

But the homeland security succession statute is much more specific than either its CFPB or Justice Department analog. As Section 113(g)(1) specifies, “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.” And if you somehow didn’t already have these cross-references memorized, “chapter 33 of title 5” is the FVRA. Unlike the CFPB and Justice Department statutes, then, the plain text of the Homeland Security succession statute unambiguously precludes reliance upon the FVRA to fill vacancies in the offices of secretary and deputy secretary of the Department of Homeland Security—so long as there is someone currently occupying the office of undersecretary for management. This may seem an awkward arrangement, but it’s hard to see the argument that it’s beyond Congress’s power to prescribe, given Congress’s long-recognized control over the terms and limits on acting officeholders.

And until Monday afternoon, there was, in fact, a Senate-confirmed undersecretary for management: Claire Grady, who was nominated to that position by … President Trump (and confirmed by the Senate in August 2017). Indeed, under Section 113(g), Grady had already been serving as acting deputy secretary since April 2018. Thus, by operation of law, Grady would have become the acting secretary whenever Nielsen’s resignation became effective, no matter what President Trump proclaims. Perhaps for no other reason than to avoid the appearance that the president didn’t know what he was doing, Grady was apparently given her walking papers on Monday.

The current executive order on Homeland Security succession, promulgated by President Obama in December 2016, puts four other offices between Grady and McAleenan in the line of succession: the Federal Emergency Management Agency (FEMA) administrator, the undersecretary for national protection and programs, the undersecretary for science and technology, and the undersecretary for intelligence and analysis. Remarkably—or entirely unsurprisingly—only one of those senior positions is currently filled with a Senate-confirmed officeholder, Under Secretary for Intelligence and Analysis David Glawe. But the order also provides that, “Notwithstanding the provisions of this section, the President retains discretion, to the extent permitted by the Vacancies Act, to depart from this order in designating an acting Secretary.” In other words, firing Grady removed the only formal obstacle to the president’s original goal, which is to say ignoring the rest of the line of succession at Homeland Security and installing McAleenan as acting secretary.

And so it seems as if Nielsen’s un-resignation was for the sole purpose of allowing the president time to remove Grady so that Grady would never be acting secretary, all to make good on a legally misbegotten tweet sent on a Sunday night.

There’s a lot more to say about the myriad problems with this administration’s growing reliance on acting officers and its unwillingness to fill crucial senior government positions, even as it has a Senate controlled by the same party as the president and that has generally confirmed the president’s nominees. There’s also plenty to say about decapitating the Department of Homeland Security in the middle of a putative immigration crisis, and what the change in leadership might portend for US immigration policy going forward. But the real lesson here is that, yet again, a president with no shame was able to exploit the Federal Vacancies Reform Act to bypass not only the Senate’s advice-and-consent role, but also the ordinary line of succession within a critical government agency.

Malevolence tempered by incompetence, indeed.