On November 1, President Trump confirmed to reporters that the administration is putting forward Chad Wolf as acting Homeland Security Secretary, following Kevin McAleenan’s decision to step down. Then the president added, “I like ‘acting.’ It gives you great, great flexibility.”
Trump’s view of “acting” roles is surprising, given that in the case of Chad Wolf, it was the reliance on “acting” heads of agencies that backed the president and his all-immigration, all-the-time agenda into a corner. Facing McAleenan’s departure, the administration had few people from which to draw another acting secretary. A rundown of recent developments with the DHS Secretary position reveals how perilous it is for the president to rely on the “flexibility” of acting leadership.
Letter of the Law
When it comes to DHS Secretary, President Trump had his eye on two people: Ken Cuccinelli, acting director of U.S. Citizen and Immigration Services (USCIS), and Mark Morgan, acting Commissioner of U.S. Customs and Border Protection. Both are hardline advocates for the Administration’s draconian views on southern border security, and by that, they were particularly attractive to Trump as options for secretary. But there was a problem—neither were eligible to serve in an acting role, according to federal law. In October, Sean Doocey, head of the White House Presidential Personnel Office, told the president that, due to the Federal Vacancies Reform Act, the appointed individual must meet one of three qualifying factors:
- Senate confirmation for their current role in the department
- In the direct line of succession, or
- Served for at least 90 days under the previous secretary.
Cuccinelli and Morgan do not possess these qualifying factors, in part because the last secretary was Kirstjen Nielsen, who left the department on April 10, 2019. Thus, because so many positions at the department are being led by “acting” individuals, the Trump Administration was left with a short list of people who could possibly be put in as acting Homeland Security Secretary. Chad Wolf supposedly fits the bill (pending his own Senate confirmation for his previous role). But even as he doesn’t become acting secretary until later this week, there’s reason to think his days at the department are numbered. After all, he used to serve as Kirstjen Nielsen’s Chief of Staff and also worked as a lobbyist for an organization representing companies that support and want to preserve the H-1B visa program—not exactly the “no room at the inn” message the Trump Administration has been shouting from atop its unbuilt border wall.
Working Around the Law
Faced with the legal reality that the president’s hands were tied, the administration got creative. Currently, there is no assistant secretary for the Countering Weapons of Mass Destruction Office. Based on a loophole created in the 2017 National Defense Authorization Act, one could potentially be placed in this assistant secretary position and then rapidly pushed up to acting DHS Secretary.
In other words, the administration explored an end-run around decisions of the legislature. The Senate did not appreciate this, particularly with regard to Cuccinelli. Sen John Cornyn (R-TX) told Politico, “The White House would be well advised to consult with the Senate and senators before they take any decisive action that might be embarrassing to Mr. Cuccinelli or to the White House itself.”
Sen. Chuck Grassley (R-IA) expressed similar reservations, saying, “It’s my understanding that the existing law would not permit him to [lead the Department]. I don’t know how you get around that. I don’t think it’s possible because of what the law says, not because of anything else.”
Despite Sen. Grassley’s thoughts, there is something else, at least when it comes to Cuccinelli—Senate Majority Leader Mitch McConnell. Before joining DHS, Cuccinelli was president of the Senate Conservatives Fund, a political action committee that funded challengers to incumbent Republicans in the Senate. In this, Cuccinelli made a powerful adversary, and McConnell even said pointedly there would be a “lack of enthusiasm” for Cuccinelli if he were appointed to become DHS Secretary. That translates to “Cuccinelli will never be confirmed in this Senate.”
What about Mark Morgan? While Morgan does support some of the administration’s immigration agenda, including building “the wall,” he has not yet been confirmed by the Senate for his role as acting CBP Commissioner, much less his previous role as head of Immigration and Customs Enforcement. While he had some bipartisan support during his prior role as Border Patrol Chief in 2017 at the end of the Obama Administration, the politics of 2020 are somewhat different. Republicans hold the Senate, but there are several legislators facing re-election next year who need to put some distance between themselves and the Trump Administration’s immigration enforcement activities (notably, the child separation policy). If Morgan were nominated for secretary, would he have the votes?
To be sure, there are other people who might be considered for DHS Secretary, but while the administration might consider them, they are not considering the offer. Case in point—acting TSA Secretary (and acting DHS Deputy Secretary) David Pekoske, who should be next in line to serve as DHS Secretary and who also said, “No, thanks.” Can you blame him?
Ultimately, Trump’s proclivity for using acting positions has put his administration in a tight spot. The people they want, they can’t have. The people they choose (Chad Wolf) are likely not as aggressive as the administration would like them to be on immigration. And so the United States heads into a dangerous time with growing threats to our homeland security. ISIS is not gone; white supremacy and right-wing terrorism are fast growing; we are facing natural disasters at a fast clip; our voting infrastructure (and our electorate) is the target of foreign adversaries (e.g., Russia); we are weak on Chemical, Biological Radiological and Nuclear (CBRN) defense—the list of threats to the nation is long.
Despite evident assumptions to the contrary, the Department’s sole purpose is not securing the southern border. As a former New Yorker who was in the city on 9/11, one would think President Trump would have a keener sense of urgency and concern when it comes to protecting the homeland. He should know better than most that we do not have flexibility when it comes to homeland security.