Ken Cuccinelli, USCIS and the FVRA: Steve Vladeck

Steve Vladeck, June 10, 2019

"The last time I wrote about the Trump administration’s abuse of the Federal Vacancies Reform Act (FVRA) of 1998, I opened with Yogi Berra’s famous quip that “it’s like déjà vu all over again.” Two months later, maybe the 1993 movie “Groundhog Day” is a better frame. To make a long story short, the administration has installed former Virginia Attorney General Ken Cuccinelli (who apparently has no meaningful chance of formal Senate confirmation) as acting director of the Bureau of Citizenship and Immigration Services (USCIS). And although the manner in which President Trump pulled this off may not violate the plain letter of the FVRA, it certainly can’t be reconciled with the law’s  spirit. ... 

...  In other words, through nothing other than internal administrative reshuffling — creating a new position and deeming it the first assistant — the Trump administration was able to bootstrap Cuccinelli into the role of acting director, even though, until today, he had never held any position in the federal government. ... 

... All of which is to say, Cuccinelli’s appointment is probably not an outright violation of the FVRA. But in that respect, it only underscores how poorly drafted the FVRA is—and how easy it is for administrations not as readily subject to conventional political checks to take advantage of its open-endedness. By this logic, nothing would prevent naming anyone, at any time, to run almost any senior agency for as long as the FVRA allows—a minimum of 210 days and perhaps more depending on when a permanent successor is nominated. There are obvious ways to fix the FVRA to prevent this president (or his successors) from similarly bypassing the Senate’s role in cases like these. The problem is finding the bipartisan political willpower in Congress to adopt them."