Who Will Run DHS? Top-Level Vacancies Make Decision Difficult
November 1, 2019|Jeff Davis
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):
|U.S. Department of Homeland Security
|Order of Succession per EO 13286 as amended by EO 13753
|(Consistent with 6 U.S.C. §113)
|Under Secretary for Management
|Federal Emergency Management Administrator
|Under Secretary for National Protection and Programs
|no longer exists (now CISA)
|Under Secretary for Science and Technology
|Under Secretary for Intelligence and Analysis
|U.S. Customs and Border Protection Commissioner
|Transportation Security Administrator
|U.S. Immigration and Customs Enforcement Director
|U.S. Citizenship and Immigration Services Director
|Assistant Secretary for Policy
|no longer exists (now Under Sec. for SPP)
|Deputy Under Secretary for Management
|Randolph “Tex” Alles
|Deputy CBP Commissioner
|Deputy TSA Administrator
|Deputy ICE Director
|Deputy ICS Director
|Federal Law Enforcement Training Center Director
(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.
|U.S. Department of Transportation
|Order of Succession per 49 CFR §1.17
|(Consistent with 49 U.S.C. §102)
|Under Secretary for Policy
|Chief Financial Officer
|Assistant Secretary for Transportation Policy
|Assistant Secretary for Governmental Affairs
|Assistant Secretary for Aviation and International Affairs
|Assistant Secretary for Administration
|vacant (per DOT website)
|Federal Highway Administrator
|Federal Aviation Administrator
|Federal Motor Carrier Safety Administrator
|Federal Railroad Administrator
|Federal Transit Administrator
|Pipeline and Hazardous Materials Administrator
|Howard “Skip” Elliott
|National Highway Traffic Safety Administrator
|Research and Innovative Technology Administrator
|no longer exists (now OST-R)
|St. Lawrence Seaway Administrator
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.)