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Published: Monday, April 08, 2019 @ 8:29 AM
— As President Donald Trump accepted the resignation on Sunday of Homeland Security Secretary Kirstjen Nielsen, his move to appoint the head of the Border Patrol as the acting chief of the Department of Homeland Security immediately raised questions as to its legality, as federal law indicated instead that the third-ranking official at DHS would actually be in charge.
Legal experts focused on the details of 6 U.S.C. §113(g), which says the Deputy Secretary of Homeland Security would take over for Nielsen - that post is currently vacant, so the authority would drop down to the third most senior official, Under Secretary of Management Claire Grady.
President Trump tweeted on Sunday though that he had a different plan.
"I am pleased to announce that Kevin McAleenan, the current U.S. Customs and Border Protection Commissioner, will become Acting Secretary," the President said.
But that immediately drew questions in the legal community.
Why isn't Claire Grady the acting secretary? See 6 U.S.C. §113(g). https://t.co/EcTtAhHPz3— Anne Joseph O'Connell (@AJosephOConnell) April 7, 2019
Either way, @realDonaldTrump’s tweet purporting to name McAleenan as Acting Secretary was wrong. He isn’t Acting Secretary today, he wasn’t yesterday, and he won’t be on 4/11 unless a series of other things (including the firing of Undersecretary Grady) happen b/w now and then. https://t.co/4d9FznfQAm— Steve Vladeck (@steve_vladeck) April 8, 2019
As @AJosephOConnell noted, it isn’t at all clear that @realDonaldTrump has the power to use the Federal Vacancies Reform Act to name an Acting DHS Secretary.— Steve Vladeck (@steve_vladeck) April 7, 2019
Instead, 6 U.S.C. § 113(g) suggests it should be Claire Grady, the Undersecretary for Management (and Acting Deputy). https://t.co/0Tvs1zdV68
Still, it was unclear how McAleenan would immediately assume the role. The agency’s undersecretary of management Claire Grady, is technically next in line for the job. w @ZekeJMiller https://t.co/rfNEJt3PJ3— Colleen Long (@ctlong1) April 8, 2019
Originally, after meeting with President Trump, Nielsen resigned effective immediately on Sunday - but by Sunday night, she announced that she had changed her mind, and would stay in the job of DHS Secretary until Wednesday.
"I have agreed to stay on as Secretary through Wednesday, April 10th to assist with an orderly transition," Nielsen wrote, a move which could give her the ability to help alter the chain of succession inside DHS.
As for McAleenan, the Border Patrol chief is well known on Capitol Hill.
Kevin McAleenan 12/18/2018— Howard Mortman (@HowardMortman) April 8, 2019
"Our border patrol stations and ports of entry were built to handle mostly male, single adults in custody, not families or children," blames smugglers for the increase in illegal crossings, calls the situation a "border security and humanitarian crisis" pic.twitter.com/8oJ3hBWHq1
No matter the temporary leadership at DHS, the ultimate nominee for President Trump to run the Homeland Security Department is certain to face a fractious confirmation hearing in the U.S. Senate in coming months, as it is certain to become a battleground over the President's immigration policies.