Trump's Appointment of Acting DHS Secretary Violates DHS Succession Act UPDATE

Steven D. Schwinn, John Marshall Law School

President Trump announced on Sunday his appointment of Customs and Border Patrol Director Kevin McAleenan as acting DHS Secretary after Secretary Kirstjen Nielsen resigned.

There's just one problem: The move violates the clear language of the DHS succession act.

House Homeland Security Committee Chair Bennie G. Thompson alerted the president to the problem in this letter yesterday. Quoting the provision, Thompson wrote:

Notwithstanding chapter 33 of title 5, United States Code, the Under Secretary for Management shall serve as the Acting Secretary if by reason of absence, disability, or vacancy in office, neither the Secretary nor Deputy Secretary is available to exercise the duties of the Office of the Secretary.

The Under Secretary for Management is Claire M. Grady. She served in that position since August 2017. 

Thompson's letter "strongly urges" President Trump to follow the law, and "to nominate a suitable candidate for Secretary as expeditiously as possible."

This isn't President Trump's first legal wrangle with Congress over his appointment authority for positions within the executive branch. We posted most recently on problems with Matthew Whitaker's appointment as acting AG here; we posted on Mick Mulvaney's appointment as CFPB head here.

UPDATE: Claire Grady resigned late Tuesday, clearing the way for Trump's appointment.