Shortly after being sworn in as acting secretary of the Department of Homeland Security, Chad Wolf — who the Senate confirmed as the agency’s policy undersecretary just hours earlier — conducted his first order of business.
He moved Ken Cuccinelli, a favorite of immigration hardliners, into the No. 2 position.
In an email to employees Wednesday, Wolf announced that Cuccinelli, who for the past five months has been acting director of the U.S. Citizenship and Immigration Services, the DHS agency that adjudicates immigration benefits, would now serve as the acting deputy secretary.
The move did not sit well with some lawmakers.
Rep. Bennie Thompson, the Mississippi Democrat who heads the Homeland Security Committee, called the move “legally questionable.”
“It seems that President [Donald] Trump just couldn’t fight the urge to play to his base by elevating Ken Cuccinelli to another senior leadership position at DHS that he is wholly unqualified for. Mr. Cuccinelli is nothing more than an anti-immigrant fringe figure and Trump sycophant,” he said in a statement.
“The fact that the President installed someone who is unable to be confirmed by the Senate for any position and cannot legally serve as Acting Secretary shows his reckless regard for democratic norms and the law. This is clearly a legally questionable appointment.”
A spokesperson for the top Republican on the committee, Rep. Mike D. Rogers, R-Ala., told CQ Roll Call via email that he “has consistently said that it’s important for DHS to have long-term, Senate-confirmed leadership.”
In his email to DHS employees, Wolf described his deputy as “a constant and vocal advocate for the men and women of the Department who are protecting our borders and restoring integrity to our immigration system.”
Cuccinelli has, indeed, been a vocal advocate of Trump’s immigration agenda, going to great lengths to defend even the most controversial policies on television, Twitter and congressional panels.
But when his name surfaced last month as a possible pick for acting secretary, Senate Republicans quickly dismissed the possibility he could ever be confirmed to the position.
Cuccinelli previously worked as president of a political action committee that campaigned against key incumbent GOP senators — including Majority Leader Mitch McConnell. The Kentucky Republican has since made it clear there was a “lack of enthusiasm” among his colleagues for Cuccinelli.
In addition to opposition from lawmakers, Cuccinelli also wasn’t eligible to become DHS acting secretary because he did not fulfill legal requisites under a federal law filling vacancies. The maneuver the White House pulled to catapult him to the top without Senate confirmation has therefore raised eyebrows.
“Because Congress has not, by law, specified which position is ‘first assistant’ to the Deputy Secretary, this move is technically legal. But just to be clear, they’re messing up the entire DHS line of succession in order to pull this off — and spitting, once again, on the Senate,” Steve Vladeck, a law professor at the University of Texas Law, said in a tweet.
Vladeck compared the scenario to a scene from the sitcom, The Office.
“It’s like when Dwight Schrute thinks that being ‘Assistant to the Manager’ means he’s the ‘Assistant Manager,’ only it’s real. And it’s the Department of Homeland Security.”
The plan to move Cuccinelli to deputy secretary was originally reported by CNN.
“I am pleased to be given the opportunity to continue to be a voice for the men and women of this department,” Cuccinelli said in a statement. “It’s been a privilege to lead the USCIS workforce these past months in faithfully administering our nation’s lawful immigration system and I look forward to continued collaboration with them.”
DHS updated its web site’s leadership page late Wednesday night to reflect Wolf and Cuccinelli’s new roles. It also continues to list Cuccinelli as acting USCIS director but Mark Koumans, the department’s deputy director, will take over the role in the interim.