Court: Trump’s Failure to Get Senate Approval for Immigration Director Invalidates New Asylum Restrictions
A federal judge ruled on Sunday that Ken Cuccinelli’s appointment to a top immigration position in the Trump administration was unlawful, saying several directives issued by Cuccinelli to tighten asylum rules must now be “set aside.”
In a 55-page ruling, U.S. District Judge Randolph Moss said the administration violated the Federal Vacancies Reform Act when it tapped Cuccinelli in June 2019 to lead U.S. Citizenship and Immigration Services, the agency within the Department of Homeland Security that oversees legal immigration into the country.
The ruling invalidated a pair of directives issued by Cuccinelli, an immigration hardliner and the former attorney general of Virginia, that introduced new restrictions on the asylum process.
The first directive shortened the length of time asylum-seekers have to prepare for “credible-fear interviews” with officials from 48 or 72 hours to “one full calendar day from the date of arrival at a detention facility.” With the second, Cuccinelli prohibited asylum officers from granting extensions to this new policy “except in the most extraordinary of circumstances.”
The meat of the opinion begins at page 30. The parties did not dispute that the USCIS Director is an “officer” as opposed to an employee. Congress understands that sometimes appointments must be temporary, and has long provided statutory mechanisms for such appointments. The Federal Vacancies Reform Act gives a president three ways to do this: allow the first assistant to the departing officer to assume temporary command (even without action by the president); obtain advice and consent from the Senate for a temporary appointment; or direct someone to perform the functions of the officer if the person who receives that direction has spent 90 of the last 365 days functioning as a senior official within the agency.
The arguments revolved around whether Cuccinelli fulfilled the requirements of the first option, apparently because the second and third options did not apply. As I understand it, after the vacancy arose, Trump created a new position that he called “Principal Deputy Director” and appointed Cuccinelli to that position. Trump’s lawyers took the position that, because that office was subordinate to the office of Director, Cuccinelli had been an assistant. But there was no director to assist, and anyone who watches The Office knows you can’t be assistant to the regional manager if there is no regional manager. So the court held that Cuccinelli was never an assistant to any USCIS officer and so could not be a “first assistant” as required by law.
One could view this as a mere technical issue, except that it seems to be part of a pattern on Trump’s part of failing to run his cabinet officers and other officials past the Senate, as required by the Constitution. Trump has been fond of acting cabinet and other officials, shouting at reporters: “But I sort of like acting. Gives me more flexibility, do you understand that? I like acting!”
Failing to run appointments past the Senate does indeed give a president “more flexibility” — but because the Constitution gives the advice and consent power to the Senate, there are limitations on what you can do unilaterally as president. This ruling represents the chickens coming home to roost.
Please note that the president would have been free to have a duly approved USCIS Director issue the sorts of directives that this decision found were invalid. He just has to follow the Constitution.
Even if Trump sort of likes acting, the Constitution demands more.
Makes sense, especially after Trump verbalized his intent there. “Acting appointments” are meant for necessity for a short period of time, not as an end-run around the Constitution.
Make America Ordered Again (23f793) — 3/2/2020 @ 8:10 amFYI, Randolph Moss is an Obama/Clinton judge. I have zero doubt that had Clinton of Obama done this, he would’ve ruled differently. Totally unrelated, of course, from Wikipedia:
In 2000, when Moss was an Assistant Attorney General in the Office of Legal Counsel (OLC) of the United States Department of Justice, he wrote the memorandum opinion advising that the Department could not indict a sitting president. “The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
Munroe (dd6b64) — 3/2/2020 @ 8:15 am2. Well sure. I don’t doubt that you’re correct, Munroe. But don’t pretend that you have the moral high ground when you apply different standards of behavior to Trump than you would Obama.
Gryph (08c844) — 3/2/2020 @ 8:19 amIt does seem odd that a court can invalidate decisions made by an executive branch agency head based on the court’s opinion (as in ruling) that the agency head is not legally eligible for their position.
It seems a drastic remedy, although I’m open to thoughts on what a lesser, but adequate, remedy would look like?
USCIS is, of course, part of national security. However, what if it had been an even more impactful set of national security decisions made, such as by SecDef or what have you? Troop movement orders, even. Can a court just invalidate those?
What about giving the government X number of days to replace the agency head by putting it before Congress, rather than underlying the actual decisions that person has made?
Make America Ordered Again (23f793) — 3/2/2020 @ 8:21 am*Putting it before Congress, meaning the Senate.
Make America Ordered Again (23f793) — 3/2/2020 @ 8:22 amGryph, I’ll leave the moral high ground poses to #NeverTrump. And, unlike them, I’m happy to apply the same standards to all presidents.
Munroe (dd6b64) — 3/2/2020 @ 8:23 amUgh. Typos/brain glitches! Corrected, this should read:
What about giving the government X number of days to replace the agency head by putting it before Senate, rather than countermanding the actual decisions that person has made?
Make America Ordered Again (23f793) — 3/2/2020 @ 8:26 amLet’s all pretend that legal arguments carried the day.
Munroe (dd6b64) — 3/2/2020 @ 8:30 amI am also sure you’re right about how this same judge would have ruled if Obama had been President. It sucks how biased courts are and shows just how important it is to get your guy into power, as in elected, as in Trump winning in 2020.
However, let’s not pretend that Trump didn’t say, “But I sort of like acting. Gives me more flexibility, do you understand that? I like acting!” or that this doesn’t hint at an intent to bypass the Senate’s roll in confirming top appointments.
I mean, it kind of does, right? And it was a GOP-dominated Senate. They got Justice Kavanaugh confirmed and if they really wanted to confirm Cuccinelli, they could. If they don’t, then Trump has to appoing someone the Senate will go along with.
That’s how it is supposed to work.
Make America Ordered Again (23f793) — 3/2/2020 @ 8:35 amOnce again the Trump administration demonstrates that it lacks the basic competence to get
Even simple tasks done well. Again it appears that Trump’s capricious and unfocused leadership
Is the root cause of his problems.
Also again his less intelligent supporters will use unsupported conspiracy theories to avoid holding
Time123 (2851d4) — 3/2/2020 @ 8:39 amTrump accountable for the mistakes of his administration that he’s caused. There’s no good reason he couldnt get an appointment through a GOP controlled senate if he’d wanted to find and push a qualified candidate.
@ Maoa, I have no idea if this was properly decided or not. But I agree with most of what you wrote.
Time123 (2851d4) — 3/2/2020 @ 8:43 amTime123, I think it may have been properly decided, at least that part of it (I think the remedy is probably too drastic, as I mentioned above). However, I strongly suspect the same judge would have stretched and possibly improperly decided in Obama’s favor, if that makes sense.
In raw power politics, i.e., normal politics, I can understand why a President of any party would stretch temporary appointments to get things done. It’s been done long before Trump.
But saying that’s what you’re doing is an own goal.
Make America Ordered Again (23f793) — 3/2/2020 @ 8:48 amI would have refused the case as a political question. If Congress cannot be bothered to enforce its law by impeaching either or both the un-Congressionally appointed official and the President who appointed him, I have a tee-time at 3:00 pm myself. Let’s see what the Court of Appeals says.
nk (1d9030) — 3/2/2020 @ 8:55 amMaoa, what makes it worse is that there isn’t even a meager excuse for Trump not to do his job wrt appointments
Time123 (2851d4) — 3/2/2020 @ 8:58 amYeah, that makes more sense to me as a remedy than reversiing his decisions.
However, playing devil’s advocate, what if the admin just lines up a bunch of temporary appointments, one after the other, all of whom get impeached and removed, and the Senate never gets a chance to confirm anybody. Hopefully wouldn’t happen, but I guess if it did, you’d have to impeach the President.
Make America Ordered Again (23f793) — 3/2/2020 @ 8:58 amRight.
I mean, I like his instincts more than I do the majority of the Congressional GOP’s instincts, so I can see preferring his chosen people, personally. But that is hardly an argument that holds water in terms of what he’s Constitutionally required to do.
Make America Ordered Again (23f793) — 3/2/2020 @ 9:00 amSo I guess what I’m saying is I can see the courts eventually saying, “You know what? That person who you put in charge there, bypassing the Senate to do so, is not actually in charge of anything in terms of the Constitution and their decisions are invalid, period, end of story. Want to change that? Go to the SENATE.”
That makes sense as a logical construction. But the courts jumping to it too early would make running the administration extremely difficult and open up the people to unwarranted dangers (such as, for example, terrorists or spies getting in the country who shouldn’t in the interim).
The courts should, if they intervene at all, let their position be known in no uncertain terms, and give the admin a reasonable, tight deadline to fix it and make the appointment proper.
Make America Ordered Again (23f793) — 3/2/2020 @ 9:04 amI think forcing the president to do something is a political question.
I think in this case it’s a question of what the law says wrt to KCs actions while in office.
So if the court said “Trump must submit a nomination” that would be out of bounds.
In this case they said “here’s the legal impacts of what you chose to do.”
No opinion on if they were correct or not. But it seems reasonable that if the law says “here’s who gets to make these rules” and they had someone else make those rules, the decisions would be invalid.
Time123 (2851d4) — 3/2/2020 @ 9:05 am@T123
Maybe.
Make America Ordered Again (23f793) — 3/2/2020 @ 9:06 amWill Cuccinelli and his staff hires have to give their salary back? Repay their health insurance and pension contributions if any? Will it violate the federal wage and labor laws?
nk (1d9030) — 3/2/2020 @ 9:26 amRemember, the Court did not say that (only) Cuccinelli exceeded his authority. It said the President exceeded his authority in the hire. Ultra vires all the way, baby.
nk (1d9030) — 3/2/2020 @ 9:30 amThe rules regarding recess appointments (and what is a “recess”) need to be firmed up as well. IMHO, any time there is no quorum in the Senate for longer than a week to 10 days, the Senate is in recess, otherwise not.
Also, why does McConnell not call recesses to let Trump fill these posts?
Kevin M (ab1c11) — 3/2/2020 @ 9:32 amI also can’t help but wonder how many times RAICES filed this case and immediately voluntarily dismissed it until they got a friendly judge.
nk (1d9030) — 3/2/2020 @ 9:32 amOf course, the current acting director does not suffer from this problem and could sign off on everything that Cuccinelli did.
Kevin M (ab1c11) — 3/2/2020 @ 9:38 amWill Cuccinelli and his staff hires have to give their salary back?
Good faith exception?
Kevin M (ab1c11) — 3/2/2020 @ 9:39 amPlausible deniability?
The Thirteenth Amendment? Snorfle.
nk (1d9030) — 3/2/2020 @ 9:41 amThis is just blatant politics. talking about the “Constituion” is laughable. The Obama judge wanted to invalidate the Trump administrations restrictions on asylum/Immigration and this was his way of doing it.
This must be Obama Judge number 75 that goes against the Trump administration. But there are no obama judges, just plain unbiased federal judges.
LOL!
rcocean (1a839e) — 3/2/2020 @ 9:41 am> It does seem odd that a court can invalidate decisions made by an executive branch agency head based on the court’s opinion (as in ruling) that the agency head is not legally eligible for their position.
Y’all realize that a very similar legal issue came up during the Obama administration with respect to agency decisions made by goverinng boards that inclued members appointed without confirmation during a period in which the Senate was holding pro forma sessions to avoid a recess (but without conducting any actual business), right? And you’re aware that the federal courts invalidated the agency decisions made by those boards, right?
This isn’t a new exercise of federal court power.
aphrael (7962af) — 3/2/2020 @ 9:43 amThis reminds me of the Census ruling where “The Constitution” (LOL) required that no one be asked if they are a citizen. Even though the Citizenship question was on the Census for years, and the Constitution hasn’t changed.
This rule by Judges, and the “Judicial Resistance” should be addressed by Barr. Even if Congress refuses to act, at least it will publicize this abuse of judicial power.
rcocean (1a839e) — 3/2/2020 @ 9:44 amWhen I was in law school, one of our professors told us how, back in the busing era, she had seen a judge helping load kids get onto a school bus. She said we could confidently say “That’s an activist judge.”
nk (1d9030) — 3/2/2020 @ 9:45 amI can’t comment on why a thing unrelated to the topic reminds you of it. But it is unrelated. None of this is new, it’s not just the judicial branch that has called out the executive, the legislative branch passed laws, the executive signed them into law, and now the judicial is reinforcing it. That the Trump admin ignored those laws is…shocking!! If you can’t do the minimum basic competencies correctly, should we really believe that they’ll be competent at doing the complex things.
Colonel Klink (Ret) (305827) — 3/2/2020 @ 9:50 amNo, not aware in my case. Thanks for pointing that out.
The reasoning behind this decision by this judge does, in fact, seem sound.
Make America Ordered Again (23f793) — 3/2/2020 @ 9:54 amBy all accounts, Cuccinelli’s “appointment” was considered questionable from the beginning. This really isn’t a surprise and in pretty much an own-goal by an administration that has a number of them.
Kevin M (ab1c11) — 3/2/2020 @ 9:56 amThis really isn’t a surprise and in pretty much an own-goal by an administration that has a number of them.
Agreed. Trump’s party controls the Senate. How hard would it be to get a confirmation?
Same thing with a lot of the immigration stuff. Some of the adverse rulings were BS Constitutional arguments. But some of them were defects under the Administrative Procedures Act. That’s not rocket science, you just follow the procedures and then proceed. These are amateur mistakes.
Bored Lawyer (998177) — 3/2/2020 @ 10:06 amTrump isn’t all that process-oriented.
Kevin M (ab1c11) — 3/2/2020 @ 10:19 amI think when you have advise and consent from the Senate, it is a permanent appointment, unless the appointment is for a specific term. I am not sure if, during a recess of the Senate, the president can make a temporary appointment if anybody, and if he also has to nominate him or not.
No, he did it right before, or rather the Acting Director did it on the same day he left office.
Everyone understood this was pushing the envelope. But Trump (or Stephen Miller maybe) didn’t like any of the other people who were eligible. They were not all such hardliners on immigration. They have to live with themselves, and with their families, friends and acquaintances.
Just to mention one issue: Right now there are humanitarian exceptions for medical treatment for those who are waiting in Mexico, but these medical exceptions are not, in many cases, being recognized. There must be an informal quota on them which doesn’t comport with reality. There’s another problem: People waiting in Mexico to be granted asylum hearings have become targets for kidnapping and extortion because they are believed to have access to money from people in the United States, and many move to another border crossing in Mexico. That also happens to people deported from the United States to El Salvador. They have to hide, if they can, that they recently arrived from the United States, if they know what’s good for them. (lawlessness is diminishing a little bit in El Salvador, except maybe from the recently elected president, who does not have any members of his party in Parliament yet.)
7. Make America Ordered Again (23f793) — 3/2/2020 @ 8:26 am
It’s the fact that someone can argue they are adversely affected by some decisions that were made by a person not legally entitled to make them that gives them standing to sue.
rcocean (1a839e) — 3/2/2020 @ 9:44 am
The issue was whether the proper procedures for adding a question had been followed. Secretaryif Commerce Wilbur Ross tried to get (somewat successfully) the Department of Justice to say they wanted the question for pruposes o enforcing the Voting Rights Act – actually the part that might apply to reapportionment. It was really an attempt to get raw figures that later a court might accept. Anyway what he said to the court was false, and then he tried to justify it another way but the court ruled that you couldn’t come up with new reasons after the fact, although they might have been OK had they started with it. I guess this avoids creating a precedent that could hurt a Democratic Administration.
In the American Community survey (a sub sample, which is not actually done only in Census years) there is a citizenship (Question 7 on the personal questions) but you don’t get asked that question online if you say you were born in the United States and name the state. If born outside the United States, which seems to include any place that’s not a state, then they ask this question which includes several different ways a person might be or have become a citizen plus the not citizen possibility, and also ask when this person came to live in the United States.
This gives a good estimate of what proportion of the population of the United States are citizens and where they, or non-citizens, live, but it can’t be used for purposes of apportionment of legislative districts, which was of course the idea, because data is not carried down to the Census tract level. (I think approximately 3,000 people)
Sammy Finkelman (9fe80b) — 3/2/2020 @ 10:47 amThat makes sense, yes.
Make America Ordered Again (23f793) — 3/2/2020 @ 11:19 amHow can we expect the president to continue hiring only the best people if he is forced to have the congress approve them?
John B Boddie (286277) — 3/2/2020 @ 12:10 pmBa da bing.
Truer words.
Make America Ordered Again (23f793) — 3/2/2020 @ 12:12 pmyet another scummy judge who thinks they can force our president mr donald to take time off from making failmerica great again or his richly deserved executive time just to obey some stupid law
where do these people get their nerve i mean really
Dave (b1bec7) — 3/2/2020 @ 2:01 pmFrom the opinion:
The judge said that
Sammy Finkelman (02a146) — 3/2/2020 @ 2:32 pmCuccinelli had never acted as an assistant and couldn’t be appointed to that position.
Y’all realize that a very similar legal issue came up during the Obama administration
And several times with respect to the CFPB. First, the outgoing director of the CFPB appointed Leandra English as his deputy, then resigned the next day asserting that English would act as director. Trump disagreed and appointed Mick Mulvaney and the courts upheld his action dismissing Engliush’s lawsuit.
Then the whole structure of the CFPB (a single director who the President cannot fire at will) was called into question by several financial firms (and states, but they were ruled to have no standing).
This case, which has had it ups and downs (most recently with an en banc reversal in the DC circuit) will reach the US Supreme Court, um, tomorrow. Kavenaugh original heard it at the DC circuit and wrote the (reversed) opinion.
Kevin M (ab1c11) — 3/2/2020 @ 5:37 pmWhat will not reach the court any time soon is the bump stock ban. The court denied cert. This morning the story was all over the innernuts #FakeNews except Fox. I wonder why not Fox?
“Judges! The Second Amendment!” Yeah, right.
nk (1d9030) — 3/2/2020 @ 5:45 pmhttps://www.scotusblog.com/2020/02/argument-preview-justices-to-consider-constitutionality-of-cfpb-structure/
Kevin M (ab1c11) — 3/2/2020 @ 5:51 pm“Bump stocks” are not the end of the law that the justices want to attack. A device that turns a manually-fired weapon into something less manual would touch upon the machine-gun ban pretty directly. There’s a lot of brush to clear before you can get to that.
Kevin M (ab1c11) — 3/2/2020 @ 5:53 pmDon’t mess with LA District Attorneys:
Los Angeles County DA’s Husband Points Gun At Black Lives Matter Protester
There was apparently a “frank exchange of views” captured on video:
(No shots were fired)
Dave (1bb933) — 3/2/2020 @ 8:47 pm