Legality of Trump Nielsen questioned

The chairman of the House Homeland Security Committee and several legal experts are questioning President Donald Trump's authority to bypass a senior Homeland Security official in order to install a hand-picked acting head of the agency that oversees immigration enforcement.

After Homeland Security Secretary Kirstjen Nielsen said Sunday that she was resigning, Trump announced on Twitter that Border Patrol Director and Kevin McAleenan would take over DHS on an acting basis.

Story Continued Below

However, in a letter to Trump on Monday, Rep. Bennie Thompson (D-Miss.) Wrote that "the law of succession at the Department is clear" that it was Nielsen's departure from the position of executive director to Claire Grady.

The legal hitch could lead Trump to fire Grady, since she appears to be an obstacle to McAleen being able to assume the role of the agency.

"The Under Secretary for Management, Claire M. Grady, who has served in this position since August 2017 and is the Acting Deputy Secretary or Senior Official Performing the Duties [of deputy secretary] Since April 2018, "wrote Thompson, the Homeland Security chairman. "I strongly urge you to follow the law and to nominate a suitable candidate for Secretary as expeditiously as possible."

Trick's announcement Sunday drew quick push back from legal analysts who said he lacked the authority to make the move – as long as Grady remains in her post.

When Nielsen tweeted late Sunday that she planned to remain in her job until Wednesday despite her resignation letter appearing to be effective Sunday, some lawyers said it was a sign that attorneys inside the administration had discovered the same legal hitch.

"They must have played late last night." Trump incompetently botched the naming wrote on Twitter.

A legal scholar who focuses on the presidential term of office of the President of the United States of America. Homeland Security lacks the ambiguity of the statutes at work in other fights the Trump administration has faced over "acting" appointments, like Trump's use of The Vacancies Reform Act to tap Mick Mulvaney to the head of the Consumer Protection Bureau and Matthew Whitaker to serve as acting attorney general.

"In neither the case nor the CFPB case did the agency-specific statute explicitly exclude the Vacancies Act and the DHS statute does," said Stanford Law Professor Anne Joseph O'Connell. She said while she was moving in, but not at this time.

"This is the example of where the Vacancies Act would not apply. If you have confirmed undersecretary of management, "O'Connell added.

O'Connell and other experts said DHS job: Fire Grady, creating vacancies in all three of the department's top positions. While she was a civil servant serving, her current job is a political appointment, so the president can fire her at will.

"She has no protection from removal. So, the only cost is a political cost, but I hope there will be a political cost, "the professor said.

Another expert, University of Texas Law Professor Steve Vladeck added on Twitter: "@realDonaldTrump'S tweet purporting to name McAleenan as Acting Secretary was wrong. He is not Acting Secretary today, he was not yesterday, and he will not be on 4/11 unless a series of other things (including the firing of Undersecretary Grady) happen [between] now and then. "

Spokespeople for the White House, Department of Homeland Security and the Department of Justice Danny Secretary, Grady remains in her post.

Initial stories on Nielsen 's resignation said Danny' s leadership over the past decade, but it 's still more important than DHS leadership, Trump is moving to get the job done – by firing if necessary.

When Trump named the Attorney General Jeff Sessions, the Justice Department released a legal opinion from its Office of Legal Counsel defending Trump's authority to bypass the order of succession and set a statute.

Truth could install an acting DHS head while Grady remains on the job.
O'Connell joked Monday that the turnover among trump administration appointees and the president's penchant for departing from the usual order of the spotlight.

"For a long time, this president has made it popular," she said.

Ted Hesson and Eliana Johnson contributed to this report.