How Trump Circumvents the Senate’s Advice and Consent

The forced resignations of Homeland Security Secretary Kirstjen Nielsen and Acting Deputy Secretary Claire Grady—to pave the way for Customs and Border Protection Commissioner Kevin K. McAleenan to become Acting Secretary—provoked Republican Senator Charles Grassley to comment that President Trump is “pulling the rug out from the very people that are trying to help him accomplish his goal.”

Even if you’re no fan of these folks—I am not—it is worrisome to see that Trump’s eagerness to have lapdogs in place has overcome the demands of an orderly administration.

When Trump installed Matthew Whitaker as his acting replacement for Attorney General Jeff Sessions, he was able to ignore the usual order of succession in the Justice Department because of a statute called the Federal Vacancies Reform Act, or FVRA. Unless restricted by some other statute, FVRA allows the president a range of possibilities in choosing acting administrators when a high-level vacancy occurs.

In the case of Homeland Security, however, another statute does apply—namely, the Homeland Security Act. That statute provides that the deputy secretary is the first successor in line should the top job be vacant. Next in line is the under secretary for management, currently Acting Under Secretary Chip Fulghum, who apparently has not resigned.

The question then arises, “Who comes next?” Until late December 2016, it would have been up to the president to establish via executive order an order of succession for DHS. President Obama did just that with Executive Order 13753 of December 9, 2016. His order put the CBP commissioner—at this moment McAleenan—in seventh place, after the deputy secretary, the under secretary for management, the FEMA administrator, and the under secretaries, respectively, for National Protection and Programs, Science and Technology, and Intelligence and Analysis.

FEMA has an acting administrator, Pete T. Gaynor. The under secretary for science and technology is vacant. The under secretary for intelligence and analysis is David W. Glawe. The national protection and programs directorate has been replaced by the Cybersecurity and Infrastructure Security Agency, the confirmed head of which is Christopher C. Krebs. That seems to leave a total of four administrators besides the now-departed Claire Grady ahead of McAleenan. Even if the acting administrators cannot be promoted to an even higher acting position, both Glawe and Krebs have Senate confirmation.

If you’re with me this far, you’re probably thinking Trump can just revoke and rewrite the Obama executive order. I’d bet Trump thinks so. Except he cannot. Just a few weeks after Obama’s order appeared, Congress amended the Homeland Security Act to provide that the DHS secretary, not the president, determines the order of succession “notwithstanding” the FVRA. Nothing on the DHS web site indicates that John Kelly or Kirstjen Nielsen ever did.

On Thursday, April 11, I called the DHS Privacy Office, which handles Freedom of Information requests, to ask if there was an order of succession document allowing McAleenan to be acting secretary. After a brief hold, the fellow to whom I spoke advised me that something was perhaps being worked on that would probably appear on the web site even faster than a FOIA request could be processed. The following morning, I received an email recommending that I submit a formal FOIA request. There is, as I write this, nothing relevant on the DHS web site.

It should be of no small concern that so many DHS “leaders” are acting without Senate confirmation to their current posts. It should be of no small concern that there’s no transparent way of discovering the lawful order of succession when the DHS Secretary’s job is vacant. It is no mystery why Trump is oblivious to such niceties: “I like acting [administrators] because I can move so quickly,” he’s said; “It gives me more flexibility.” For a contrasting view, I suggest Alexander Hamilton, who wrote that “the true test of a good government is its aptitude and tendency to produce a good administration.” Trump is failing that test.

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Peter Shane

Peter Shane teaches constitutional law at the Ohio State University's Moritz College of Law and is the author of Madison's Nightmare: How Executive Power Threatens American Democracy (University of Chicago Press 2009).