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Is Trump skirting the law with Ken Cuccinelli's appointment?

Ken Cuccinelli's isn't just a poor choice to oversee the nation's legal immigration system. He's also been thrown into the job in a legally dubious way.
Ken Cuccinelli talks with supporters while greeting voters at Hanover Precinct 304 at Atlee High School on November 5, 2013 in Mechanicsville, Virginia.
Ken Cuccinelli talks with supporters while greeting voters at Hanover Precinct 304 at Atlee High School on November 5, 2013 in Mechanicsville, Virginia.

By any sensible measure, Ken Cuccinelli is a very poor choice to oversee the nation's legal immigration system. As we recently discussed, the far-right Virginian -- an intra-party critic of Trump’s before he changed his mind -- has earned a reputation for radicalism on a wide range of issues, including immigration.

And yet, Donald Trump has nevertheless tapped Cuccinelli to serve as the acting director of the United States Citizenship and Immigration Services.

DHS secretary Kevin McAleenan announced the move in an email to agency staff Monday, though the mechanics of whether it would include an official nomination were not immediately clear.In any event, Cuccinelli, head of the Senate Conservatives Fund and a former Virginia attorney general, is expected to take over at least on an interim basis at USCIS, which is responsible for the administration of legal immigration, including dealing with asylum claims, issuing green cards and handling the naturalization process.

Ordinarily, this would be the point at which I start to write about the many reasons Cuccinelli is an awful choice, why he's likely to fail, and how this ties into the larger pattern of the president choosing the wrong people for important posts after seeing them say nice things about him on television.

But as applicable as those points are, this story is a little different. In fact, what was especially notable about the Cuccinelli announcement yesterday was the degree to which it circumvented the law.

In practical terms, Donald Trump has a political problem: he wants Ken Cuccinelli to lead Citizenship and Immigration Services, but the president also knows that Senate Republican leaders hate Cuccinelli and almost certainly won't confirm him to the powerful position.

Under normal circumstances, that would lead a normal White House to start looking for someone else. In 2019, however, it led Team Trump to look for a way to put Cuccinelli in the position anyway, personnel laws be damned. As Government Executive reported overnight:

President Trump on Monday circumvented the typical temporary appointment process by naming an individual with no existing role in the federal government to be the acting head of an agency. [...]USCIS said Trump appointed Cuccinelli to the role under the 1998 Federal Vacancies Reform Act, but did not elaborate on the specific legal avenue the administration followed. The law requires that acting officials for Senate-confirmed positions come either from the first assistant to that position or elsewhere in the executive branch. In the latter category, employees must be either in a GS-15 position or above for at least 90 days prior to the vacancy or in a separate Senate-confirmed role.

To get around the Federal Vacancies Reform Act, the Trump administration has apparently created a new "principal deputy director" position and put Cuccinelli in it, effectively squeezing the far-right Virginian into a bureaucratic flowchart so that he can do the job without Senate confirmation.

Is this legal? It's a question without an obvious answer, though by all appearances, the White House doesn't much care.

As for the Senate, which is responsible for considering and confirming the Citizenship and Immigration Services director, it's tempting to assume the institution would have a problem with a president going around senators like this. Whether the Republican-led chamber will do anything, however, remains an open question.