When President Trump accepted the resignation of Homeland Security Secretary Kirstjen Nielsen on Sunday, he was quick to name a temporary successor. “I am pleased to announce that Kevin McAleenan, the current U.S. Customs and Border Protection Commissioner, will become Acting Secretary for @DHSGov,” Trump tweeted. “I have confidence that Kevin will do a great job!”
The move, however, may have been illegal. Homeland Security secretary is an administration position that requires Senate confirmation, which means that Trump can’t just name anyone he wants to fill the position, even on a temporary basis. Normally, if a department secretary like Nielsen were to resign, they would be replaced by the department’s deputy secretary until the president’s nominee to fill the position permanently can be confirmed. There was no deputy secretary of Homeland Security, which means the under secretary for management, Claire Grady, should step in as the acting secretary. This doesn’t appear to be arguable.
You make a good point — I don’t see, at first glance, how they can use Vacancies Act given this language. pic.twitter.com/jdLYGOngdG
— Eric Columbus (@EricColumbus) April 7, 2019
This means that for Trump to install McAleenan as acting secretary, he would first need to get rid of Grady, which could be a problem as, according to the New York Times, she does not intend to step aside voluntarily. Also a problem is that Nielsen wrote in her resignation letter that her decision to step down would take effect on Sunday. On Sunday night, however, she tweeted that she had “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.” As Kellyanne Conway’s husband and frequent Trump critic George Conway pointed out on Twitter, this may have been a result of the administration suddenly realizing its line-of-succession snafu.
Her letter said “effective April 7”—yesterday. They must have realized late last night how Trump incompetently botched the naming of her successor without having someone check the statute. But was the resignation letter accepted? https://t.co/c8l0F2gIXX
— George Conway (@gtconway3d) April 8, 2019
Regardless of whether Trump rushing to name McAleenan acting DHS secretary was the result of incompetence or a willful attempt to circumvent the law — a question that has hung over countless decisions by this administration — forcing Nielsen to resign is an alarming move. Frustrated by his inability to construct a wall along the southern border, the president is growingly increasingly desperate to project strength in the face of what he has described as a “crisis” at the border. Last week, he threatened to close it entirely before backing off and giving Mexico a bizarre one-year deadline to prevent drugs from crossing into the United States. A few days earlier, he officially cut off aid to Guatemala, Honduras and El Salvador as punishment for their inability to prevent their citizens from fleeing to America in search of asylum.
McAleenan, who Trump wants to take over for Nielsen, has said that he wants to increase aid to those nations.
Now that Kevin McAleenan is the new acting DHS secretary, a reminder that McAleenan has repeatedly called for continued aid to Northern Triangle countries as key to solving the migrant crisis, putting him directly at odds with Trump's decision to cut aid:https://t.co/NvoOyXSDp0 pic.twitter.com/tHEQC5XWKV
— Greg Sargent (@ThePlumLineGS) April 7, 2019
Though Nielsen will forever be labeled as the woman who presided over the administration’s family separation policy, she ultimately wasn’t harsh enough for Trump, who is now denigrating the entire idea of immigration, tweeting on Sunday that “Our Country is FULL!” The Times reported that Nielsen’s ouster was the result of Trump losing his patience with her inability to seal the border, as well as her refusal to stop accepting migrants seeking asylum into the United States. Just as concerning is Trump’s decision on Friday to rescind his nomination of Ronald Vitiello to take over Immigrations and Customs Enforcement, a move aimed at taking a “tougher” approach toward undocumented immigrants. “When even the most radical voices in the administration aren’t radical enough for President Trump, you know he’s completely lost touch with the American people,” said Senate Minority Leader Chuck Schumer (D-NY) after Nielsen submitted her resignation.
Though Trump seems content with temporary officials manning some of the administration’s most vital positions — the secretary of defense, secretary of the interior and Trump’s chief of staff are all serving on an “acting” basis — he will ultimately need to nominate someone to replace Nielsen atop the DHS. Considering Nielsen authorized and then defended separating migrant children from their parents, the prospect of Trump picking a more extreme replacement is frightening. Whoever it is, they’ll have to be confirmed by the Senate, which the GOP controls by a 53-47 margin. Unfortunately, not many of those 53 Republicans senators have shown any willingness to check the president’s power.