MARY LOUISE KELLY, HOST:
All right, while reducing the number of migrants coming from Central America is one of President Trump's top priorities, you wouldn't know it by looking at an org chart of the executive branch. Acting appointees, temps are leading nearly all the key agencies responsible for immigration. Senator Dick Durbin, the Illinois Democrat, took note of this fact at a hearing yesterday.
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DICK DURBIN: We cannot face this crisis effectively with a revolving door policy in the leadership of the Department of Homeland Security.
KELLY: I want to bring in Joel Rose, who covers immigration for us. He is in the studio now. Hey, Joel.
JOEL ROSE, BYLINE: Hey, Mary Louise.
KELLY: When I said nearly all the key agencies responsible for immigration are filled by temps right now, take us through which ones we're talking about.
ROSE: Well, this is the four top posts at the Department of Homeland Security that have to do with immigration starting with the guy at the very top, acting secretary Kevin McAleenan. Also the commissioner of Customs and Border Protection is serving in an acting capacity.
KELLY: That's two.
ROSE: Director of Immigration and Customs Enforcement - also acting...
ROSE: ...As well as U.S. Citizenship and Immigration Services.
ROSE: All of them have been appointed since Trump took over - sorry - shook up the department in frustration over what's happening at the border.
KELLY: Yeah, and why - why so many acting appointees?
ROSE: Well, President Trump has been pretty open about doing this kind of thing on purpose.
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PRESIDENT DONALD TRUMP: I sort of like acting - gives me more flexibility. Do you understand that? I like acting. So we have a few that are acting. We have a great, great Cabinet.
ROSE: This allows the administration to put people into these jobs who would otherwise have a difficult time getting confirmed by the Senate for the permanent posts - for example, Ken Cuccinelli, who was appointed this week to head USCIS. That's the agency that's in charge of green cards and visas - legal immigration.
KELLY: And what is his story? Why would Cuccinelli face a hard time getting confirmed?
ROSE: Well, Democrats don't like what Cuccinelli says about immigration. He's a hardliner who's expressed support for the president's agenda, including a crackdown on migrants who are seeking asylum in the U.S. But Cuccinelli has also made some powerful enemies on the Republican side. And until just a few days ago, he served as president of a conservative group that funded campaigns against Republican senators, including the majority leader, Mitch McConnell, and several key Republicans - right - who have all signaled now that they would oppose Cuccinelli if he were nominated to lead USCIS. So Cuccinelli took over on Monday as acting director, but the White House has not formally nominated him, and it's not really clear if they will.
KELLY: What does the law say about this, Joel? Is it legal to keep people in acting jobs or create jobs that don't have to get Senate confirmation?
ROSE: So this is a little complicated. Bear with me.
ROSE: By law, Cabinet-level jobs and hundreds of other positions in the federal government are subject to Senate confirmation. There's also something called the Federal Vacancies Reform Act which spells out who can serve as acting director and who can't and for how long.
Several legal scholars say Cuccinelli doesn't appear to meet any of those requirements, but they say the administration got around the law by creating a brand new job for Cuccinelli that made him the next in line to be acting director. I talked to Anne Joseph O'Connell at Stanford Law School. She says this seems to violate the spirit of the law.
ANNE JOSEPH O'CONNELL: This does seem to be an end run not just around the Senate confirmation process where senators have said they don't want to confirm Mr. Cuccinelli, but it also seems as an end run around the Vacancies Act.
ROSE: I should note there were temporary appointees who headed departments under President Obama, particularly in his second term when he was facing a Republican majority in the Senate. What's different about President Trump is how often he seems to be doing it and that he's doing it at a time when his own party controls the Senate.
KELLY: And theoretically could confirm whoever they wanted to confirm. NPR's Joel Rose, thank you.
ROSE: You're welcome.
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