How could Ken Cuccinelli be named “acting” head of USCIS if he didn’t work at the agency?

His first day on the job was yesterday, as “acting” head of the entire department. Normally an acting director is someone who’s already been at the agency for awhile, knows how things work, and can step into the director’s role in a pinch when there’s a vacancy to keep things running smoothly. (E.g., the deputy director.) The whole point of having an acting director is to have someone experienced do the job while the president looks for a permanent replacement. If the president ultimately decides he wants to bring in a permanent replacement who has no experience, that’s A-OK: Just follow the Constitution, submit his or her name to the Senate, and wait for confirmation. That’s the way things are supposed to work.

So how did we end up with a director at USCIS who has no experience but who also hasn’t been confirmed by the Senate?

Simple answer: The White House is using procedural chicanery to install Cuccinelli as acting director because they know he’ll be rejected by the Senate. This is, in other words, a blatant end-run around the Constitution’s advice-and-consent requirement for principal officers, because a Republican Senate won’t do the president’s bidding. If I were McConnell, I’d sue.

USCIS said in the announcement Monday that Cuccinelli would become acting director, but later clarified to POLITICO that his official title is “principal deputy director.”

The newly created position will allow Cuccinelli to run the agency without dismissing USCIS deputy Mark Koumans, according to one current and one former DHS official familiar with the plan. The officials expected the administration to make the “principal deputy director” position the top role in the department, which would allow Cuccinelli to become acting director under a provision of the Federal Vacancies Reform Act.

To see what’s going on here you’re better off reading law professor Steve Vladeck’s short but useful post at Lawfare on the loophole in the Federal Vacancies Reform Act that Trump is exploiting. The FVRA says that if the director of an agency resigns, as happened with USCIS, then the president can choose one of three temporary replacements while he looks for a permanent successor: (1) The director’s “first assistant,” i.e. the deputy director; (2) someone who already holds a job in the executive branch *and* was confirmed by the Senate for that position; (3) someone who’s been at the agency for at least 90 of the past 365 days. Those options are true to the spirit of the choice I described above. You can name someone “acting” director without Senate confirmation so long as they have experience, or you can name someone without experience so long as they have Senate confirmation. But it needs to be one or the other. You can’t lack both.

Cuccinelli lacks both. So how’d he land this job?

The answer, says Vladeck, is in the excerpt I quoted above. Trump essentially elevated Cuccinelli to the role of “first assistant” to the vacant directorship by creating the position of “principal deputy director” for him, something that can be done in this case via regulation rather than congressional statute. By doing that, he bumped the actual deputy director, Mark Koumans, down a notch on the bureaucratic ladder. With Cuccinelli now Koumans’s superior, he became the new “first assistant” to the vacant director — even though he never actually worked for the old director — and thus, for purposes of the FVRA, he can now be named acting director of the agency. Which, under the FVRA, could keep him in place for the next 210 days as a “temporary” appointee lacking any Senate confirmation.

And if Trump decides to ignore that 210-day limit and keep Cuccinelli on indefinitely, who’s going to stop him?

The entire point of this maneuver is to flout the constitutional requirement for Senate confirmation and appoint someone who’s accountable exclusively to the president. We went through this last year when Trump pulled a similar move at the DOJ with Matt Whitaker, appointing him to be Jeff Sessions’s chief of staff after Whitaker had said some skeptical things about the Mueller investigation on television and then eventually elevating Whitaker to the role of acting AG after the axe finally fell on Sessions. At least in that case Whitaker worked for Sessions and the DOJ for a year before being named acting AG. Cuccinelli is coming into USCIS completely cold, with Trump not even making a pretense that he’s interested in finding a permanent director anytime soon. What’s more, he’s doing this after members of his own party told him emphatically through the media that Cuccinelli would be DOA in a confirmation hearing because of his attacks on establishmentarians like Mitch McConnell in the past. Not only is he unconfirmed, in other words, he’s unconfirmable. The Senate has given its advice to the president informally and they do not consent to Cuccinelli’s appointment. His nomination has been effectively rejected. Trump doesn’t care, so long as he has a loophole in the FVRA he can exploit.

Given how blatant POTUS is being about dodging the constitutional “advice and consent” requirement *and* the FVRA’s “experience or Senate confirmation” statutory requirement, it’s a cinch that Cuccinelli’s appointment will be challenged in court. Question for legal eagles, then: Who’s best positioned to have standing here? I assume McConnell won’t sue no matter how annoyed he is, but wouldn’t someone affected by a USCIS policy conceivably have standing to sue on grounds that Cuccinelli’s orders lack the force of law because he was never lawfully appointed? Exit quotation:

Romney on Cuccinelli named acting director of USCIS to skirt sure doom in Senate confirmation vote: "I prefer votes in the Senate for positions of that nature”

— Burgess Everett (@burgessev) June 10, 2019