President Trump this week installed a hardliner with plenty of enemies in the U.S. Senate as a pinch hitter temporarily leading the government’s immigration and naturalization agency, U.S. Citizenship and Immigration Services. Daring establishment Republicans on Capitol Hill to object, Trump skipped over the Senate confirmation process by using a loophole in federal law.
“Ken Cuccinelli began serving as the acting director of USCIS on June 10, 2019,” Cuccinelli’s bio on the agency’s website says.
Unlike most acting directors, Cuccinelli has no experience at his new agency. Like the rest of them, though, he can skip a grueling Senate confirmation process, even if he stays in the job for months. It’s a test he would likely fail.
Ken Cuccinelli is not only right-wing — in 2012 he called Rep. Steve King (R-IA) “one of my very favorite congressmen” — he’s also long been an agitator within his own party. The former Virginia attorney general chaired a fundraising group that challenged Republicans from the right, including Senate Majority Leader Mitch McConnell (R-KY), and rallied behind toxic candidates like Alabama’s Roy Moore.
As a result, Senate confirmation would have been a slog.
“I have expressed my, shall I say, lack of enthusiasm, for one of them who was mentioned in some story and that Ken Cuccinelli,” McConnell told reporters in April, when Cuccinelli and fellow hardliner Kris Kobach, the former Kansas secretary of state, were rumored as considerations to lead the Department of Homeland Security.
The President and his advisors have reportedly long sought to find posts for Cuccinelli and Kobach somewhere in the administration. Last month, when both men were reportedly under consideration to be the White House’s “immigration czar,” someone leaked Kobach’s embarrassingly long list of demands for the job to The New York Times. A day after the Times report, on May 21, word emerged in that newspaper and the Washington Post that Cuccinelli would get a job at DHS, thought it was unclear which.
When then-USCIS Director L. Francis Cissna, himself a public face of the Trump administration’s immigration restrictions, announced on May 24 that he would leave that post at Trump’s request, attention turned, yet again, to Cuccinelli.
Republicans, responding to Monday’s leadership change, were not pleased.
Sen. John Cornyn (R-TX), who between 2007 and 2011 ran the Republican Party’s Senate campaign committee, told The Hill that Cuccinelli had “made a career of attacking other Republicans and frankly attacking President Trump, so I doubt he’ll have the support to get confirmed.”
Sen. John Thune (R-SD) said simply: “He would have had a hard time getting confirmed.”
Instead of nominating Cuccinelli outright, though, Trump is using the Federal Vacancies Reform Act (FVRA) – a move his administration has also resorted to to fill holes at the top of DHS, the Consumer Financial Protection Bureau, the Department of Justice and elsewhere.
The law outlines the process by which vacancies are filled atop executive branch agencies. Vacancies can be filled by the “first assistant to the office,” another Senate-confirmed official or someone else who’s served for at least 90 days in the year leading up to the vacancy.
Cuccinelli was none of those when Cissna resigned.
In Lawfare on Monday, Steve Vladeck explained how the President got around that problem: “Apparently, Cuccinelli has been named to the brand-new position of principal deputy director of USCIS, a role that, so far as I can tell, did not exist before today. Presumably, the new staff position of principal deputy director will supersede the deputy director as the first assistant for purposes of the FVRA.”
“Acting” directors, as they’re known, can serve 210 days under the FVRA, or even longer if the President formally nominates someone to take their place.
The move gels with Trump’s admission that “it’s easier to make moves” with acting officials in charge, rather than permanent, Senate-confirmed ones.
Whether or not Senate Republicans agree with Cuccinelli’s hardline immigration views, they don’t like the maneuver Trump used to put him in power.
“Just knowing people the way I do, it’s going to make some people angry,” Sen. Marco Rubio (R-FL) told The Hill.
Sen. Mitt Romney (R-UT) added: “I prefer votes in the Senate for positions of that nature.”
But unless Senate Republicans put up a fight over Cuccinelli’s appointment and insist that Trump formally nominate a permanent USCIS director, Cuccinelli could be in that position for seven months or more.
None of the GOP senators quoted in this article responded to TPM’s request for comment, except Cornyn’s office, which sent a copy of his previous statement.