(Photo by Sarah Silbiger/Getty Images)
Don’t sleep through Admin Law, kids! You just might save a life.
Yesterday, Judge Randolph D. Moss of the U.S. District of DC ruled that Trump’s efforts to shoehorn immigration hardliner Ken Cuccinelli in as “Principal Deputy Director” of the US Customs and Immigration Services (USCIS) violated the Federal Vacancies Reform Act, and thus his written orders in the position aren’t worth the paper they were written on.
Trump has long wanted to give Ken Cuccinelli, AKA “The Cooch” a perch in the executive branch from which to kick immigrants, preferably as head of the Department of Homeland Security. Unfortunately, Mitch McConnell has made it very clear that this guy will never be confirmed to anything on his watch, which is a thing that tends to happen when you run an organization dedicated to primarying sitting Republicans from the right. (McConnell et al. have no objection to Cooch’s previous support for a ban on consensual oral and anal sex as a Virginia gubernatorial candidate, because Gippers are strictly missionary, we guess.)
But Trump was undeterred, and set his sights on the USCIS. On June 1, 2019, Lee Francis Cissna, the Senate-confirmed Director of USCIS, resigned, making Deputy Director Mark Koumans, acting Director by statute. Acting Homeland Security Secretary Kevin McAleenan immediately issued a directive creating a brand new temporary post as “Principal Deputy Director” of USCIS, a position “senior” to Deputy Director and thus in line to become acting head of USCIS. In effect, McAleenan’s directive created a fictional senior position that would allow Cuccinelli to serve simultaneously as both director and deputy — all the while openly acknowledging the ruse by specifying that the position would sunset whenever Trump got around to appointing a new Director for the agency.
And despite most legal observers pointing out that HELLO, NO, THAT IS NOT HOW LAW GOES!, he went right about his business as if he’d been legally appointed head of USCIS.
Cuccinelli immediately set about making it harder for refugees to claim asylum, reducing preparation time for credible fear hearings to twenty-four hours after arriving at a detention facility and doing away with preparatory orientation to acquaint asylum-seekers with the legal process and identifying those with special needs requiring accommodation at hearing.
Plaintiffs, asylum seekers who were denied time to adequately confer with counsel before a hearing to determine if they had credible fear of returning to Honduras, challenged the directive as an ultra vires order issued by the fake head of USCIS, appointed in violation of the Federal Vacancies Reform Act. And yesterday the D.C. District Court agreed.
The FVRA provides that, for a position which requires Senate confirmation, “the President (and only the President)” may choose either another senate-confirmed appointee, OR a senior official employed at the agency for “not less than 90 days.” On which, the Trump administration is 0 for 3. McAleenan is not the president; Cooch was never confirmed by the Senate to any office at all; and he never worked at USCIS.
Which is what Judge Moss held:
Cuccinelli may have the title of Principal Deputy Director, and the Department of Homeland Security’s order of succession may designate the office of the Principal Deputy Director as the “first assistant” to the Director. But labels—without any substance—cannot satisfy the FVRA’s default rule under any plausible reading of the statute.
And while the holding has limited applicability for asylum seekers, since it applies only to the five named plaintiffs, it does mean that Cooch is out as Acting Head of USCIS. But don’t worry, because the administration has already lined up another hardliner to take his place. On February 19, DHS Secretary Chad Wolf shoved Deputy Director Koumans, a career immigration official, out of the way, replacing him with the agency’s general counsel Joseph Edlow, who was more to the White House’s liking.
As for McAleenan, who put his name on the original, illegal directive, well, he got pushed out months ago for not hating immigrants enough. Wages of sin, etc.
L.M.-M. v. KENNETH T. CUCCINELLI II, in his purported official capacity as acting Director of U.S. Citizenship and Immigration Services [Case 1:19-cv-02676-RDM ( D.D.C., March 1, 2020)]
Elizabeth Dye lives in Baltimore where she writes about law and politics.