The ‘Acting’ Heads of the Trump Administration: Threats to Our Democracy
With many high-ranking positions that lack Senate approval under the Trump administration, their actions can be damaging to our democracy. But what authority do they have over us?
In any department or agency appointed by the President, it is subject to the Federal Vacancies Reform Act of 1998 where any appointed head can be replaced by another individual who will serve as the “acting” head of that branch during an interim period until another Senate-approved appointee can be put in place.
Under the Federal Vacancies Reform Act of 1998, the “first assistant to the office” becomes the acting officer by default. The President, however, can also appoint another person who is holding a Senate-confirmed position to serve as the acting officer or any other senior official under that department who has served at least 90 days before the position has been vacated.
The law also mentions that the interim period of an acting official can only last 210 days unless the first and second nominations are rejected — which will extend the period to for another 210 days.
With current surges of federal law enforcement in cities such as Chicago, Kansas City, and Portland, these agencies and departments in charge of deploying federal agents are under large scrutiny for violating the Constitution during protests.
However, what is more concerning is the lack of Senate approval for current department and agency heads under the Trump administration — many of whom are directly involved in the recent surges of federal law enforcement.
Chad Wolf — Acting Secretary of the Department of Homeland Security
Since November 13, 2019, he has acted as the nation’s Acting Secretary of the DHS following the previous Acting Secretary of the DHS Kevin McAleenan’s departure on November 1, 2019.
The Trump administration hasn’t had an official Secretary of Homeland Security in over 470 days which prompts concern over his motives despite holding a Republican majority in the Senate.
Under the Federal Vacancies Act, his term officially ends on June 10, 2020, however, with no appointee known, it seems as if Wolf is continuing to hold power in the department — sparking concern over his actions in the present day as he continues to deploy federal agents across the nation. As of July 26, 2020, Wolf has served as the Acting Secretary for 256 days. Regarding his legal authority, we look at his second: Acting Deputy Secretary of the DHS Kevin Cuccinelli.
Kevin Cuccinelli — Acting Deputy Secretary of the U.S. Department of Homeland Security
Kevin Cuccinelli is currently the Acting Deputy Secretary of the Department of Homeland Security and also the Acting Director of the U.S. Citizenship and Immigration Services.
He took office as the Deputy Secretary on November 13, 2019 (along with Wolf) and as the Acting Director of the USCIS on June 10, 2019, despite clear opposition by the GOP. In a clear move to bypass Congress, he was appointed the Acting Director of the USCIS.
On March 1, 2020, U.S. District Judge Randolph Moss ruled his appointment as the Acting Director unlawful and suspended policies regarding asylum and immigration Cuccinelli tried to enact.
The controversy first began when Cuccinelli was appointed to a recently created position within the USCIS called the “Principal Deputy Director” which many claim is a violation of the Federal Vacancies Act. Judge Moss officially ruled that because Cuccinelli was not lawfully appointed, he lacked the authority to issue the two policies challenged in the lawsuit. And yet, he still holds the position.
Being in office as the Acting Deputy Secretary to the DHS for 256 days and the Acting Director of the USCIS for 412 days are clear violations to the Federal Vacancies Reform Act. If the court ruled that Cuccinelli didn’t have the authority to issue directives as the Acting Director, then it must be assumed that Wolf lacks the legal authority to act and deploy federal law enforcement in cities without their consent.
But that’s not the end of it, many of the agencies relating to immigration under the Department of Homeland Security are also filled with acting heads.
Mark A. Morgan — Acting Commissioner of U.S. Customs and Border Protection
Mark A. Morgan took office as the Acting Commissioner of the U.S. Customs and Border Protection agency on July 5, 2019, leaving his previous position as the Acting Director of the U.S. Immigration and Customs Enforcement.
Similar to the cases stated previously, Morgan is not the actual head of the CBP as he was never Senate approved and his temporary position has also exceeded the 210-day period stated under the Federal Vacancies Reform Act. Under his command are over 58,000 employees including 21,000 CBP Officers and 21,000 Border Patrol agents who are at his disposal — many of whom have been deployed in cities across the United States.
Morgan’s temporary position was supposed to end on January 31, 2020.
Matthew Albence — Acting Director of U.S. Immigration and Customs Enforcement
Matthew Albence started his term as the Acting Director of ICE on July 5, 2019, after previously serving as the Acting Deputy Director of ICE in 2018.
Despite being in office for 387 days without a known nomination, ICE agents have been detected in Portland, Oregon, supporting the Federal Protective Service in its claim to protect federal property.
Albence’s temporary position was supposed to end on January 31, 2020.
Derek Benner — Acting Deputy Director of U.S. Immigration and Customs Enforcement
Following Albence is his second, Derek Benner, who began his term as the Acting Deputy Director of ICE on July 5, 2019.
Being in office for 387 days, he is another high-level official under the Department of Homeland Security currently supporting the deployment of federal forces across the U.S.
Benner’s temporary position was supposed to end on January 31, 2020.
The Overreach of Power in the Executive Branch
Having temporary officials is not new, it’s been in place for decades. However, the scale at which the Trump administration has ignored the Constitution and the law is concerning.
In Article II, Section 2 of the Constitution, it clearly states that the President shall nominate “with the Advice and Consent of the Senate” cabinet, department, and agency heads. In coordination with the Federal Vacancies Reform Act, acting officers who exceed the 210-day period are subject to the Government Accountability Office and the Comptroller General who will report to the President, specific congressional committees, and the Office of Personnel Management about exceeding the limit.
However, using the ability to appoint temporary positions — nonetheless, ignore the 210-day limit — is a huge concern over power in the Executive Branch of government. Republican Senator Lamar Alexander has stated that it is an important and crucial component of the government that has real repercussions in regards to the President’s pattern of appointing temporary heads.
“But when it breaks down, we actually give the president more power because he can appoint all these acting people and ignore the United States Senate, which is just the reverse of what the founders intended.”
Checks and balances are in place to prevent one branch of government from holding too much power and to prevent turning a government to tyranny. In response to the accusations of unlawful acts, President Trump claimed that “I like acting because I can move so quickly. It gives me more flexibility.”
Surpassing a Republican-majority Congress is exactly what Trump is doing which threatens our democracy. Senate Majority Leader Mitch McConnell has clearly stated that if the President has a nominee, “it’ll go to the front of the line. And we’ll process it as early as we can.”
At this point in time, the Senate can only wait until Trump has appointed a permanent official and as election day draws closer, it seems that he won’t be worrying about that any time soon.
If an unlawfully appointed position is deemed as lacking authority in federal court, it’s clear that many people are concerned about the actions that current Acting Secretary of the Department of Homeland Security Chad Wolf is undertaking.
The idea of an abuse of power under the Trump administration is continually adding fuel to the election. With the deployment of federal forces across the nation to quell the violence, it seems as if the intended agenda is to provoke more violence instead.
Nevertheless, these acting heads of departments and agencies are currently involved in the deployment of federal law enforcement causing a large divide among state and federal officials. On one side, the acting heads are acting without Senate approval and on the other, they are acting without the consent of the state.
“I don’t need invitations by the state, state mayors, or state governors to do our job. We’re going to do that, whether they like us there or not,” Wolf stated on a Fox News interview.
Although protecting federal property is completely legal, the justification for unlawful arrests and suppressing protests is another debate. However, the fact of the matter is clear: these acting officers of and under the Department of Homeland Security have blatantly exceeded the 210-day limit under the Federal Vacancies Reform Act of 1998 and the President has clearly bypassed Congress in order to push his agenda.