Thread by @steve_vladeck

The Trump Administration has certainly _stretched_ the language of the Federal Vacancies Reform Act, but unless I'm missing something, I don't see a remotely plausible argument that Cuccinelli could be named Acting DHS Secretary under 5 U.S.C. § 3345(a):

newsmax.com/john-gizzi/kev…

Cuccinelli is _not_ the first assistant to the Secretary under 3345(a)(1).

He hasn't been confirmed by the Senate, so that nixes 3345(a)(2).

And he wasn't a senior DHS employee for 90 of the 365 days before the Secretary position became vacant on April 10, 2019, per 3345(a)(3).

The Administration could try to argue that "the applicable officer" under 3345(a)(3)(A) is McAleenan, not Nielsen, and Cuccinelli has been at DHS for 90 days while McAleenan has been Acting Secretary...

But that's belied by the text of the first sentence of the statute:

The first sentence refers to an _officer_ (not an _office_) "whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate."

That's indisputably Nielsen, not McAleenan. So Cuccinelli can't fall under 3345(a)(3) either.

The only other possibility is that the Administration argues that McAleenan can restructure the order of succession under 6 U.S.C. § 113(g)(2).

But even if McAleenan is "the Secretary" under that provision, Cuccinelli doesn't hold _any_ of the offices described in 113(a)-(e).

113(g)(2): "[T]he Secretary may designate such other officers of the Department." But Cuccinelli is only the Acting Director of USCIS. "Such other officers" must have been "appointed by the President, by and with the advice and consent of the Senate."

In sum, this would be nuts.