A large group of prominent conservatives, including former Sen. Jim DeMint, Citizens United President David Bossie and Club for Growth President David McIntosh, wrote a letter this week pushing for Cuccinelli.

“Ken Cuccinelli checks two boxes for President Trump — style and substance,” said RJ Hauman, government relations director at the Federation for American Immigration Reform, which has been supportive of Cuccinelli in conversations with the White House. “He’ll successfully manage the sprawling bureaucracy at DHS, push back against activist judges and, most importantly, continue implementing President Trump’s immigration agenda.”

Morgan rejoined the Trump administration in May as acting ICE director, but moved to CBP the next month. The appointment represented a rapid ascent for the former Obama official, who left his post as Border Patrol chief during the early days of Trump’s presidency.

Since taking over at CBP, he’s hosted White House briefings on border security and repeatedly praised the president’s enforcement strategies. At the same time, he’s brushed aside humanitarian concerns over Trump policies, such as “remain in Mexico,” which forces certain non-Mexican asylum seekers to wait in that country pending the outcome of their U.S. cases.

A Customs and Border Protection spokesman declined to make Morgan available to discuss the possibility that he might be tapped for the secretary job. DHS declined to comment when asked who would become acting secretary after McAleenan’s departure. Instead, the department referred the request to the White House.

Homan unapologetically carried out Trump’s immigration crackdown through the first year and a half of the administration until his retirement in mid-2018. Trump announced in June that Homan would return as a “border czar,” but Homan was caught unaware and the move never happened.

While Homan said the White House has not contacted him about the DHS secretary role, he said he would consider it. “I’m not saying no, I’m not saying yes, but I’d sit down and have a discussion,” he said.

The appointment of Cuccinelli, Morgan or Homan as acting secretary or a similar workaround, however, could trigger legal challenges.

A statute that governs DHS succession places the deputy secretary and under secretary for management in line for the acting secretary role, although both of those positions are currently filled by acting officials.

Rebecca Jones, policy counsel at the Project on Government Oversight, a Washington-based watchdog, contends that the lack of Senate-confirmed officials within the Trump administration — and at DHS specifically — violates the Constitution’s mandate that the Senate vet and approve presidential nominees.

“It might be more convenient for the president to have people who are immediately going to do exactly what he wants them to do in the moment, but I don’t think it’s beneficial to our democracy, or transparency or accountability,” she said.

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Jones argues that the cast of acting officials at DHS makes it hard for the department to act effectively. “We need someone who’s knowledgeable and empowered to make the big decisions when the time comes,” she said.

A separate federal law that outlines procedures for filling vacancies requires that acting officials be either the “first assistant” to the position, a Senate-confirmed official detailed to the role, or a senior employee at the agency for 90 days during a 365-day period before the vacancy occurred.

Cuccinelli and Morgan joined after the departure of former Secretary Kirstjen Nielsen, the last Senate-confirmed DHS chief. Homan left the administration in late June 2018, which means he spent less than 90 days at the department before her exit.

Still, the White House used creative workarounds to install Cuccinelli and Morgan in their current roles. In both cases, the administration created new “principal deputy director” positions that allowed each official to run their respective agencies.

Cuccinelli’s appointment to USCIS already has been challenged in several lawsuits that argue the move violated federal law and a constitutional requirement for the Senate to vet top-level officials.

Tony Reardon, president of the National Treasury Employees Union, which represents 27,000 CBP employees worldwide, argued that top-level vacancies can hurt the performance of workers throughout an organization.

“Every agency needs stable leadership that puts forth consistent policies and guidance and sees that the workforce has the training and tools needed to implement those policies,” Reardon said in a written statement. “Turnovers and vacancies at the highest levels makes this much more difficult.”