The resignation of Kevin McAleelan as Acting Secretary of Homeland Security, announced October 11, was supposed to take effect yesterday. But the Trump Administration has been unable to settle on a new Acting Secretary, so as of last night, McAleelan was going to stay on a few more days until the White House could settle on a successor.

The problem with finding an Acting Homeland Secretary has drawn attention to just how understaffed DHS is at top positions, and how the Department of Transportation is in much better shape, relatively speaking.

Every Cabinet agency has some kind of organic statute, and that statute usually sets the Secretarial succession order at the very top (usually naming the next two or three people in line). If a succession order is spelled out in law, the President isn’t supposed to deviate from that order. For Homeland, that organic statute is in 6 U.S.C. §113, which states that if the Secretary’s job is vacant, the Deputy Secretary acts as Secretary, and if both the Secretary and Deputy jobs are vacant, the Under Secretary for Management becomes Acting Secretary. If all three posts are vacant, the law then provides that “the Secretary may designate such other officers of the Department in further order of succession to serve as Acting Secretary.” But that has been trumped by the Vacancies Act and President Obama’s December 2016 Executive Order 13753, which sets a recommended succession order further down the line.

The EO 13753 succession order looks like this (assuming McAleelan’s departure from his Senate-confirmed post as U.S. Customs and Border Protection Commissioner as well as Acting Secretary):

(The major DHS component head not listed in the line of succession is the Coast Guard, which is not included in order to preserve the military-civilian distinction and also because in time of war, the Coast Guard becomes part of the Defense Department.)

But EO 13753 also contains two savings clauses:

(i) No individual who is serving in an office listed in subsection (a) in an acting capacity, by virtue of so serving, shall act as Secretary pursuant to this section.

(ii) Notwithstanding the provisions of this section, the President retains discretion, to the extent permitted by the Vacancies Act, to depart from this order in designating an acting Secretary.

The Vacancies Act is a confusing mess (the Congressional Research Service, which prides itself on producing concise summaries of complicated issues, has a summary brief on the Vacancies Act that is still really confusing).

President Trump apparently sees the Homeland Secretary job as being entirely about immigration and the U.S.-Mexico relationship, and wants a hard-liner for that job. None of the people on the list above are apparently hard-line enough, so the President has reportedly been thinking outside the box, but his preferred candidates apparently don’t pass Vacancies Act muster.

Now, compare all of that to the Department of Transportation’s organic statute at 49 U.S.C. §102. That law establishes a 1-2-3 order of Secretary, Deputy Secretary, and Under Secretary. Beyond that, if the top three jobs were vacant, the law says that “An Assistant Secretary or the General Counsel, in the order prescribed by the Secretary, acts for the Secretary when the Secretary, Deputy Secretary, and Under Secretary of Transportation for Policy are absent or unable to serve, or when the offices of the Secretary, Deputy Secretary, and Under Secretary of Transportation for Policy are vacant.”

The official succession order is set by regulation in 49 CFR §1.17 and is shown below.

General Counsel Steven Bradbury has been designated by the President to be Acting Deputy Secretary, and Assistant Secretary for Aviation and International Affairs Joel Szabat has been designated by the President as Acting Under Secretary.

(11/14/2019 follow-up: The Senate wound up accelerating the nomination of Chad Wolf to be Under Secretary of Homeland Security for for Strategy, Policy, and Plans – which had been pending on the Senate Executive Calendar since July 24 – and confirmed him by a 54-41 vote on November 13 so that Wolf would be eligible for President Trump to appoint him Acting Secretary under the Vacancies Reform Act, which the President did later that day.)