Trump had reportedly zeroed in on two loyalists as potential acting secretary of the sprawling department: Ken Cuccinelli, currently the acting director of the U.S. Citizenship and Immigration Services, and Mark Morgan, the acting commissioner of U.S. Customs and Border Protection.
However, existing law prevents either man from leading DHS on an acting basis, White House personnel assistant Sean Doocey reportedly informed Trump.
The law governing federal fill-ins, the Federal Vacancies Reform Act (FVRA), says three types of people can fill federal vacancies: the “first assistant” at an agency, other officials at the agency who’ve been Senate-confirmed, or others who’ve been at the agency at least 90 days in the year before the vacancy occurred.
Both Cucinelli and Morgan took their current roles after the departure of former Senate-confirmed DHS Secretary Kirstjen Nielsen — making them ineligible to take over for McAleenan, her substitute replacement.
The legal impediment points to a striking fact about Trump’s inexperienced picks to lead the Department of Homeland Security: Both have been in their current jobs for less than a year.
Trump tweeted on Oct. 11 that McAleenan would resign and that he would announce a new acting secretary “next week.” The week came and went without any announcement.
The Trump administration took an unusual route to install Cuccinelli at his current job despite him not meeting any of the FVRA guidelines for acting chiefs.
After learning that even many Senate Republicans would oppose Cuccinelli’s confirmation to lead USCIS, the administration created a new “first assistant” role at the agency for him, “principal deputy director.” Thus, the agency’s new leader became acting director on his first day, with no prior experience in federal government.