Acting up
June 11, 2019

Immigration hardliner Ken Cuccinelli took the helm of U.S. Citizenship and Immigration Services (USCIS) on Monday, making him the latest "acting" agency leader at the Department of Homeland Security — he joins the acting Homeland Security secretary, acting Immigration and Customs Enforcement (ICE) chief, acting Customs and Border Protection (CBP) director, acting Federal Emergency Management Agency (FEMA) administrator, and other top acting DHS officials. But Cuccinelli isn't even technically acting USCIS director, he's "principle deputy director."

This distinction will allow Cucinnelli to run the agency without Trump firing acting USCIS deputy director Mark Koumans, Politico reports, citing a current and a former DHS official. "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." University of Texas law professor Steve Vladeck tries to explain:

Cuccinelli isn't alone — this is how Trump named Mark Morgan acting head of ICE, Politico reports. The White House hasn't nominated either Morgan or Cuccinelli to fill these roles permanently, and Cuccinelli likely wouldn't be confirmed if Trump did nominate him, given the bipartisan opposition he faces. This wasn't lost on immigration advocates. "I think it's incredibly inappropriate to put someone in an acting position when they should be going through Senate scrutiny and the legally required confirmation process," Kerri Talbot, a director at Immigration Hub, tells Politico. Peter Weber

January 3, 2019

President Trump starts 2019 with a bunch of new faces in his Cabinet, though almost all of them have "acting" appended to their titles. At a rambling, televised 95-minute Cabinet meeting on Wednesday, The Wall Street Journal notes, Trump was surrounded by Acting Interior Secretary David Bernhardt, Acting Attorney General Matthew Whitaker, Acting EPA Administrator Andrew Wheeler, Acting Chief of Staff Mick Mulvaney, and Acting Defense Secretary Patrick Shanahan.

Some of the acting officials have been acting for a while, like Wheeler, a former coal lobbyist, who's nearing the end of his allowed 210 days as acting EPA chief. Others, like Bernhardt, took over more recently; his predecessor, Ryan Zinke, left his office Wednesday after writing an official resignation note in red Sharpie. The rules about how long someone can serve in an acting capacity are kind of complicated, but you can puzzle through them at Lawfare. Peter Weber

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