Trump installs his immigration soulmate at DHS
by digby
Ken “the Cooch” Cucinelli (yes, that’s his real nickname…) is an immigration extremist. And he’s now in charge of the U.S. Citizenship and Immigration Service:
Former Virginia attorney general Ken Cuccinelli’s long-rumored role as a top coordinator of the Department of Homeland Security immigration policy finally has an official title. According to an email sent to staff at U.S. Citizenship and Immigration Services on Monday, the longtime border hawk has been named acting director of the agency, whose 19,000 employees orchestrate the country’s immigration and naturalization system.
“We must work hand in hand with our colleagues within DHS, along with our other federal partners, to address challenges to our legal immigration system and enforce existing immigration law,” Cuccinelli wrote in an email to his new colleagues. “Together we will continue to work to stem the crisis at our southwest border.”
The note also previews an escalation of Trump’s crackdown on the asylum system, with Cuccinelli vowing to “work to find long-term solutions to close asylum loopholes that encourage many to make the dangerous journey into the United States so that those who truly need humanitarian protections… receive them.”
As Virginia’s top law enforcement official and in his years serving in the Virginia state senate, Cuccinelli laid a long track of aggressive anti-immigrant policies intended to restrict access to public services, employment, and even citizenship from migrants and their families. That record, combined with his vociferous defense of President Donald Trump on cable news and in conservative media outlets, puts Cuccinelli firmly in line with an administration that has made combating undocumented immigration its top domestic policy goal.
In his new role at Homeland Security, Cuccinelli will be one of the Trump administration’s top bosses on immigration-related matters, a portfolio that has felled other senior administration officials in recent months as the president has grown dissatisfied with stubbornly high rates of illegal entry into the United States.
If his record on immigration issues is any indication, Cuccinelli will embrace that role with relish. While his support for President Donald Trump may be relatively newfound, his championing of hardline Trump-style immigration policies is more than a decade in the making.
Although Cuccinelli first drew national attention during his time as Virginia’s attorney general for his attempts to keep laws against oral sex on the books, he also became a staunch advocate on behalf of aggressive immigration policies in other states. In 2010, Cuccinelli filed an amicus brief in support of S.B. 1070, an Arizona law that allowed police officers to investigate the immigration status of any person arrested or detained by law enforcement based on a “reasonable suspicion” that they were in the country illegally. That same year, he released a legal opinion expanding a similar policy to include any suspected undocumented immigrant stopped by law enforcement for any reason.
“Virginia law enforcement officers have the authority to make the same inquiries as those contemplated by the new Arizona law,” Cuccinelli wrote in the opinion. “So long as the officers have the requisite level of suspicion to believe that a violation of the law has occurred, the officers may detain and briefly question a person they suspect has committed a federal crime.”
Cuccinelli told reporters at the time that any police officer had the authority to question potential undocumented immigrants “so long as they don’t extend the duration of a stop by any significant degree.”
Those stances on illegal immigration appear tame compared to other proposals that Cuccinelli had backed before becoming attorney general. During his eight years in the Virginia state senate, Cuccinelli was the chief patron—the body’s version of primary sponsor—of a rash of bills targeting undocumented immigrants in the commonwealth.
One proposed law would have allowed employers to fire employees who didn’t speak English in their workplace, and stipulated that any employee so fired would be “disqualified from receiving unemployment compensation benefits.” Another bill would have allowed businesses to sue competitors that they believed to be employing undocumented immigrants for economic damages, plus $500 “for each such illegal alien employed by the defendant.”
In one case, Cuccinelli championed one of Trump’s most aggressive immigration policies before Trump himself did. In a 2008 bill, Cuccinelli urged Congress to call a constitutional convention to amend the 14th Amendment of the U.S. Constitution “to clarify specifically that a person born to a parent who is a U. S. citizen is also a citizen of the United States,” to the exclusion of the children of undocumented immigrants who are born in the United States.
Immigration advocates called Cuccinelli’s appointment as acting head of the nation’s top immigration agency “deeply troubling.”
“Whether Ken Cuccinelli’s appointment is lawful remains to be seen,” said Ali Noorani, executive director of the National Immigration Forum, noting that the appointment appears to sidestep the Federal Vacancies Reform Act. “Cuccinelli’s track record of anti-immigrant stances and statements is deeply troubling. In the end, we need unifying solutions and smart policy on immigration, not further polarization. Cuccinelli’s installation doesn’t bode well.”
Cucinelli doesn’t qualify for the role without Senate confirmation and even the GOP Senate balked at installing him. So they just did it anyway:
As I’ve explained at rather embarrassing length before, the FVRA, when not superseded by other statutes, gives the president a choice of three options with which to temporarily fill vacancies in senior government positions. The president may choose the “first assistant” to the vacant office, choose anyone currently holding a Senate-confirmed position in the executive branch, or choose a non-Senate-confirmed senior employee who has been serving in the same agency as the vacant office for at least 90 of the previous 365 days. Congress thereby gave the president far more flexibility than it probably meant to (and certainly more than it needed to), perhaps assuming that presidents would act responsibly—and that politics would prevent the president from taking advantage of the broad flexibility provided by the statute as a structural end-run around the Senate’s constitutional advise-and-consent role.
Enter, President Trump. We’ve already seen … creative … interpretations of the FVRA (especially as it relates to other agency statutes) with regard to the appointment of Mick Mulvaney as acting director of the Consumer Financial Protection Bureau, Robert Wilkie as acting secretary of veterans affairs, and Matthew Whitaker as acting attorney general (not to mention how Kevin McAleenan became acting secretary of homeland security). But the Cuccinelli appointment is taking advantage of an entirely different—and more problematic—loophole.
Although the director of USCIS holds an office created by statute, the same does not appear to be true of the deputy director. Instead, that position is an internal position created by executive branch regulation (and currently held by Mark Koumans, who, as the “first assistant” until now, had been serving as acting director of USCIS for the past week). Apparently, Cuccinelli has been named to the brand-new position of principal deputy director of USCIS, a role that, so far as I can tell, did not exist before today. Presumably, the new staff position of principal deputy director will supersede the deputy director as the first assistant for purposes of the FVRA. (Some statutes expressly identify which position in specific agencies is the first assistant, but no such statute does in this case.) 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.
Needless to say, the Senate will just say “thank you sir, may I have another” and that will be that.
This is going to be very bad.
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