The White House is planning to circumvent Congress and the federal Vacancies Act using a statutory loophole that will allow President Donald Trump to appoint a like-minded immigration hardliner to head the Department of Homeland Security (DHS), according to The New York Times.

The perennially understaffed DHS will be without a leader when currently acting secretary Kevin McAleenan officially steps down Thursday.

Under the Vacancies Act, a Senate confirmed appointee may be replaced by 1) the first assistant to the secretary, 2) an officer already confirmed by the Senate in a different position, or 3) an employee of the same agency who has been with the agency for at least 90 of the preceding 365 days.

As previously reported by Law&Crime, the President’s top two candidates for the position, acting Director of Citizenship and Immigration Services Ken Cuccinelli; and acting Commissioner of U.S. Customs and Border Protection Mark Morgan, were roundly rejected by the Department of Justice Office of Legal Counsel (OLC) in an embarrassing defeat earlier this month. According to the OLC opinion, neither of the men were eligible to permanently assume the role because they were neither held Senate confirmed positions and were not next in the line of succession for the job.

According to the Times, however, the White House has reportedly found a bureaucratic workaround to typical appointment protocol by appointing their preferred candidate to be the assistant secretary of the Countering Weapons of Mass Destruction Office (CWMD). The chief of the CWMD office is what’s called an “inferior officer.” Under a rarely used exception in the appointment statutes, the president may unilaterally promote such inferior officers to acting positions that normally require Senate approval, an administration official told the Times.

“For this preposterous ‘bypass’ to work, the ‘Secretary’ of Homeland Security would have to rewrite the DHS succession order to elevate the Assistant Secretary for CWMD above numerous more senior officials. And there hasn’t been a ‘Secretary’ of Homeland Security since April 10,” professor Steve Vladeck of the University of Texas School of Law wrote in response to the news.

Vladeck, an expert in constitutional and national security law, lamented that the White House was eschewing the legal process without justification.

“Keep in mind that all of this is totally unnecessary. There are hundreds of people who could lawfully be named Acting DHS Secretary under the Federal Vacancies Reform Act of 1998. And that’s to say nothing of nominating a permanent secretary and sending that name to the Senate,” he remarked.

[image via Win McNamee and Getty Images]

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