Photo Credit: Eric Haynes
Earlier this month, we witnessed a tremendous amount of political machinery in the executive and legislative branches’ move to nominate, hear, and confirm the Honorable Amy Coney Barrett. Yet, with less than a week until the 2020 US presidential election, the year-long vacancies in the Department of Homeland Security still somehow have yet to be filled by President Donald Trump and the Senate. Namely, both the Secretary and Deputy Secretary positions sit unfilled by Senate-confirmed public officials. Chad Wolf and Ken Cuccinelli have been serving as Acting Secretary and Acting Deputy Secretary, respectively, since former Secretary Kevin McAleenan resigned and Trump subsequently nominated the two of them. The legality of these individuals serving on an acting basis is now under serious dispute, which has damaged the DHS’s ability to execute policy.
This issue has once again highlighted problems with how the Trump administration selects senior leadership in the executive branch. From his very first days after being elected, Trump has been criticized for the manner and quality of his staff selection. Controversial resignations have plagued the Trump administration, from Michael Flynn’s resignation as National Security Advisor after lying about his conversations with the Russian Ambassador to the US to Steve Bannon’s August 2017 resignation under pressure from his role as chief strategist and his recent indictment on fraud charges relating to his Southern Border Wall building campaign.
These examples are far from exceptions. The Brookings Institute estimates that Donald Trump’s senior leadership “A Team” possesses a turnover rate of 91%. This kind of unprecedented turnover combined with the legal and ethical violations of several of Trump’s former senior appointees raises doubts about the President’s ability to effectively staff the executive branch. Given the conduct of some of his nominees, it seems that either Trump has been tricked into selecting low-quality executive officers, or that Trump knowingly accepts unqualified candidates whom he desires, regardless of the consequences.
The first is an accusation of incompetence on the President’s part; the second is an accusation of willful apathy. And while earlier in the the President’s term it was hard to say which argument was stronger, the recent Acting Secretary and Acting Deputy Secretary fiasco has more clearly elucidated President Trump’s lack of regard both for the executive government positions entrusted into his care and for the importance of the democratic process in the executive branch as a whole.
Prior to former DHS Secretary Kirstjen Nielsen’s resignation under pressure in April 2019, she adjusted the DHS’s rules of succession in an attempt to position Trump-favorite Kevin McAleenan to become Acting Secretary of the DHS. Her adjustments, however, only applied to cases of natural disaster and emergency inability to perform the role’s duties, not to willful resignation. Therefore, when she resigned and Trump fired her deputy to make way for McAleenan, her resignation did not constitute an applicable situation for this new line of succession. This rendered McAleenan’s ascension to the role unlawful, according to a conclusions released by Congress’ Government Accountability Office (GAO). Thus, when McAleenan again modified the DHS succession rules in November 2019 to move White House favorites Wolf and Cucinelli to the top positions, he was not lawfully allowed to do so.
However dull these changes might seem, they’ve had an outsized effect on domestic policy in the United States this year. The DHS oversees everything from border security to antiterrorism, and the department’s leaders have a tremendous impact on how those issues are addressed. This year, Wolf and Cucinelli separately introduced policy adjustments making it more difficult for asylum seekers to apply for and be granted placement in the United States. However, both Wolf’s and Cucinelli’s restrictions were struck down by separate court rulings, with one judge determining that Cucinelli was serving in his role unlawfully, and the other basing her ruling on the likelihood that “Plaintiffs [will] demonstrate McAleenan’s appointment was invalid … so he lacked the authority to amend the order of succession to ensure Wolf’s installation as acting secretary,” thereby invalidating Wolf’s regulations as well.
The Trump administration has appointed two leaders without the authority necessary to run one of the country’s most important executive departments. President Trump surely knew of the legal issues regarding these appointments at least as far back as March and did nothing to address them for months. Ken Cuccinelli has still not been nominated for the role of Deputy Secretary of DHS, and despite Chad Wolf finally receiving a nomination in August and facing hearings last month, there seem to be no plans for a Senate vote before the election.
Now, a willingness to play fast and loose with the rules is something expected from the Trump Administration. One might argue that a willingness to use unorthodox political strategies is one of the very things that got him elected. However, this current situation is not simply a policy decision or an executive precedent being flouted by Trump. This is the President allowing two unlawful leaders, appointed outside of the democratic process, to make profound impacts on the United States, doing everything from sending unidentified federal officers to intervene in riots around the country to narrowing the conditions for immigrants to be awarded asylum. This kind of behavior from the President isn’t just harmful in the moment, it sets a dangerous precedent. If the Commander in Chief disregards what should be a joint executive and legislative decision to appoint bureaucratic leaders, then we are in chaos. And despite the reprimand of judges as to Trump’s decision to maintain these unlawful appointees, there seems to be no recourse within the government to compel Trump to respect these rules.
The strongest democratic option remaining for the populace to compel future presidents to respect and obey the legislative limits on their authority is to take a stand in this election against these kinds of behaviors. Joe Biden is far from the ideal candidate for many of us on the ideological right, but throughout the last thirty seven years in politics he has shown nothing but respect and deference for the democratic processes of the United States.
Equally important to what our representatives do is how they decide to do it. While we might generally support many of Trump’s policy goals, how can we possibly justify the manner in which he achieves them? His tactics make a mockery of the high office we have entrusted to him. And it is high time we returned to an era where we respect the quality of our leaders as much as the quality of their platforms.
For that reason, I’m supporting Joe Biden for President this 2020 election cycle.
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