When President Donald Trump appointed racist former Virginia Attorney General Ken Cuccinelli as Acting Director of U.S. Citizenship and Immigration Services (USCIS) in June 2019, he did so illegally, according to a ruling handed down by a federal judge on Sunday.
Trump has taken up the habit of bypassing the Senate, which is supposed to confirm presidential appointments to key positions like the USCIS, by merely naming them to “acting” capacity.
The problem is that this scheme directly violates the section of the Constitution requiring “advice and consent” of the Senate. Trump’s appointment of Cuccinelli also violates the Federal Vacancies Reform Act of 1998.
And that’s exactly how U.S. District Judge Randolph Moss ruled this week in a 55-page decision smacking Trump and Cuccinelli down.
“Cuccinelli may have the title of Principal Deputy Director, and the Department of Homeland Security’s order of succession may designate the office of the Principal Deputy Director as the ‘first assistant’ to the Director,” Moss wrote. “But labels — without any substance — cannot satisfy the FVRA’s default rule under any plausible reading of the statute.”
According to the Huffington Post:
Only an official designated as “first assistant,” as defined by the FVRA, can assume the role of acting USCIS director when the vacancy arises, according to the ruling. Cuccinelli initially was appointed to the new position of principal deputy director. At the same time, the USCIS order of succession was revised to include the principal deputy director as a first assistant. Both of these changes occurred after the vacancy had arisen.
It was a sneaky try by Trump to install a racist crony, but it ultimately did not fool the judge, who reminded Trump that “advice and consent…is more than a matter of ‘etiquette or protocol’; it is among the significant structural safeguards of the constitutional scheme.”
And because Trump appointed Cuccinelli illegally, all of the policies he put in place are now void.
“On the merits, the Court concludes that Cuccinelli was not lawfully appointed to serve as acting Director and that, as a result, he lacked authority to issue the reduced time-to-consult and prohibition-on-extensions directives,” the judge wrote. “The remedy for that deficiency, moreover, is compelled by the FVRA and the APA: the Asylum Directives must be set aside.”
Now Trump will either have to hope that a higher court will overturn the decision and continue letting him violate constitutional norms, or he will have to actually nominate someone to go through the Senate confirmation process. But for now, at least some of Trump’s most egregious immigration policies have been sidelined.
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