2016 law appears to block the president from naming current Customs and Border commissioner to replace Kirstjen Nielsen.
President Trump’s pick to take over the Homeland Security Department on a temporary basis could face a legal challenge to his appointment, as a federal statute appears to require another official to assume the job.
Former DHS Secretary Kirstjen Nielsen stepped down over the weekend, creating a vacancy at the top of the department. Trump quickly named current Customs and Border Protection Commissioner Kevin McAleenan as acting secretary. A provision of the fiscal 2017 defense authorization bill signed into law by President Obama, however, clearly designates the DHS undersecretary for management as the top official in the event that both the secretary and deputy secretary positions are vacant.
Claire Grady is currently the undersecretary for management and the acting deputy secretary.
The Trump administration previously ran into pushback when the president named Mick Mulvaney to head the Consumer Financial Protection Bureau after Richard Cordray resigned, rather than the bureau’s top deputy. The Justice Department issued a legal opinion at the time that stated Trump's authority under the 1998 Federal Vacancies Reform Act superceded CFPB’s line of succession.
The recent law setting the DHS line of succession appears more concrete, however, as it specifically states that “notwithstanding” the vacancies law, the undersecretary for management “shall serve as acting secretary” when no one is serving in the top two roles at the department. Obama subsequently issued an executive order setting the line of succession at DHS, placing the deputy secretary and undersecretary for management at the top, but said the president “retains discretion” to depart from that order as provided under the vacancies law.
The relevant provision of the defense authorization bill stemmed from the bipartisan 2016 DHS Accountability Act, introduced by Sen. Ron Johnson, R-Wis. The sponsors of that measure, which was approved unanimously in committee before being incorporated in the defense bill, touted it for “designat[ing] the undersecretary for management to serve as acting secretary” if the secretary and deputy secretary were not available.
In her resignation letter, Nielsen said she planned to step down effective April 7. In a subsequent tweet, however, she said she would stay on until April 10 “to assist with an orderly transition and ensure that key DHS missions are not impacted.” The delay could give the White House more time to sort out its legal options for the vacancy. The New York Times reported that Grady will not resign and the administration would have to fire her to make way for McAleenan’s temporary appointment, which appears to be the direction the administration is headed.
DHS declined to comment. The White House did not respond to requests for comment.
The lack of permanent leadership at DHS “could not come at a worse time,” said Rep. Bennie Thompson, D-Miss., chairman of the House Homeland Security Committee.
“There is now currently no permanent secretary nor deputy secretary at the department,” Thompson said. “The department will quickly need proven, Senate-confirmed leaders in place that can work with Congress in good faith to help keep the country safe and to fix the Trump-inflicted situation at the border."
Thompson also wrote a letter to Trump in which he noted the "law of succession at the department is clear" and implored the president to name Grady acting secretary.
This story has been updated.