Trump's choices for top Homeland Security role aren't legally allowed to take the job

It doesn’t look like Donald Trump will be filling the revolving door slot at the top of the Department of Homeland Security (DHS) any time soon.

Trump had two diehard supporters in mind for the job of acting secretary of DHS: Ken Cuccinelli, currently acting head of U.S. Citizenship and Immigration Services and Mark Morgan, acting head of Customs and Border Protection. Both of those agencies are part of DHS, and both candidates are immigration hardliners, just like Trump. However, neither one of them is legally allowed to take the job.

That’s according to the Justice Department’s Office of Legal Counsel, which concluded that neither man could take the job as acting secretary because the Federal Vacancies Reform Act prohibits them from doing so. Under the FVRA, only three categories of people could take the job: someone else at the same agency who has already been confirmed by the Senate, people who have been at the agency for at least 90 days in the year before the vacancy, or the first assistant at an agency. Trump’s personnel director, Sean Doocey, was tasked with explaining this to Trump.

The problem here is that Trump has purged so many people at DHS and installed so many “acting” people to avoid triggering Senate confirmation that none of his favorites fall into any of those categories. First, Trump got rid of the secretary who was actually confirmed by the Senate, Kirstjen Nielsen. Trump ousted her because, despite caging children, she just wasn’t vicious enough for him.

Then he named Kevin McAleenan, who thinks tear-gassing migrants at the border is “remarkable” in a good way, as acting secretary. But that wasn’t enough either, as McAleenan said what he didn’t have “control over is the tone, the message, the public face and approach of the department in an increasingly polarized time” and that he was troubled by people like Cuccinelli and Morgan. So McAleenan resigned.

Trump then apparently assumed he was free to put one of his extremist picks in the job, but because both of them came to the agency after Nielsen resigned, they’re not eligible to take the acting director role, as they didn’t serve 90 days under her — only under McAleenan.

Trump could solve all of this by naming either man as the actual head of the agency, rather than merely slotting them into an acting role, but he has said he prefers the “flexibility” of having an acting head. What he really means by that is he doesn’t want to have to wait for someone to get confirmed by the Senate.

And, in the case of Cuccinelli in particular, there’s a very real chance he is too extreme to get past even the friendly GOP majority in the Senate. But Trump could revive his ridiculous “border czar” idea — an invented position that wouldn’t need Senate confirmation because it isn’t really an agency role. Given that Cuccinelli shares Trump’s worst views, from comparing immigrants to rats, to believing that people who die seeking asylum should blame themselves, expect Trump to keep trying to find a place for someone this horrible.

Published with permission of The American Independent Foundation.