Ho­man gets nom­i­nated to lead Im­mi­gra­tion and Cus­toms of­fice

The Washington Times Daily - - POLITICS - BY STEPHEN DINAN

Pres­i­dent Trump on Tues­day nom­i­nated Thomas D. Ho­man to be­come the per­ma­nent head of U.S. Im­mi­gra­tion and Cus­toms En­force­ment, in a move that heads off what could have been a cri­sis of lead­er­ship at the crit­i­cal agency.

Mr. Trump acted with just two days left be­fore the Va­can­cies Act would have kicked in, and forced

Mr. Ho­man to give up au­thor­ity to make de­ci­sions as act­ing di­rec­tor

— where he’s been since the first days of the new ad­min­is­tra­tion.

Now that he’s been nom­i­nated, the po­si­tion can con­tinue to hold au­thor­ity. Mr. Ho­man is deputy di­rec­tor and will re­main the se­nior of­fi­cial per­form­ing the du­ties of the di­rec­tor, mean­ing he’ll func­tion as the agency chief while the nom­i­na­tion is pend­ing — mean­ing he’ll con­tinue to be the driver be­hind the pres­i­dent’s im­mi­gra­tion crack­down.

Mr. Trump also nom­i­nated Jason Klitenic on Tues­day to be the new gen­eral coun­sel at the Of­fice of the Di­rec­tor of Na­tional In­tel­li­gence, again mov­ing to head off an im­pend­ing clash with the fed­eral Va­can­cies Act.

Un­der the 1998 law, an ad­min­is­tra­tion can leave act­ing of­fi­cial in place for up to 300 days, but be­yond that the act­ing of­fi­cial must be ousted or the po­si­tion loses power. The only ex­cep­tion is if a per­ma­nent nom­i­nee has been sub­mit­ted to the Se­nate, which re­sets the clock.

Mr. Trump has lagged far be­hind his pre­de­ces­sors in mak­ing those nom­i­na­tions, and the Va­can­cies Act dead­line for po­si­tions va­cant as of his Jan. 20 in­au­gu­ra­tion kicks in this week, which could per­haps sap dozens of po­si­tions of their power.

Ac­cord­ing to nom­i­na­tion track­ers, more than 200 key po­si­tions re­main un­filled — though some of those do have picks pend­ing, mean­ing the act­ing of­fi­cers can still make de­ci­sions.

The Gov­ern­ment Ac­count­abil­ity Of­fice, which is charged by law with polic­ing the va­can­cies, has a clunky web page that lists dozens of jobs that would ap­pear to be in dan­ger of los­ing au­thor­ity this week.

Among those are a se­ries of di­vi­sion chiefs at the State De­part­ment and U.S. Agency for In­ter­na­tional De­vel­op­ment; the chief coun­sel at the IRS; sev­eral posts at the En­vi­ron­men­tal Pro­tec­tion Agency; and the head of the Jus­tice De­part­ment’s Of­fice on Vi­o­lence Against Women.

Mr. Trump’s Of­fice of Man­age­ment and Bud­get, which over­sees the fed­eral bu­reau­cracy, did not re­spond to re­quests for com­ment this week.

The State De­part­ment didn’t have a re­sponse in time for this ar­ti­cle on the mul­ti­ple va­can­cies it’s deal­ing with.

The Washington Times be­gan ask­ing the Home­land Se­cu­rity De­part­ment about Mr. Ho­man and the Va­can­cies Act dead­line ear­lier this month.

Both of the top im­mi­gra­tion en­force­ment agen­cies at the de­part­ment have been op­er­at­ing with act­ing chiefs since the be­gin­ning of the ad­min­is­tra­tion.

Kevin McAleenan, who’s been serv­ing as the com­mis­sioner of U.S. Cus­toms and Bor­der Pro­tec­tion, was al­ready nom­i­nated to be the per­ma­nent com­mis­sioner. His nom­i­na­tion has been pend­ing in the Se­nate for months, so his po­si­tion was se­cure.

But Mr. Ho­man has been twist­ing for months as a de­bate went on be­hind the scenes about whether he, or some­one else, should be chief at ICE.

With­out a new nom­i­na­tion, the post would have been stripped of au­thor­ity and de­ci­sions would most likely have de­volved to Mr. Ho­man’s boss, the Home­land Se­cu­rity sec­re­tary. At this point, that per­son is Elaine Duke, who is also act­ing as sec­re­tary in lieu of John F. Kelly, who gave up the job over the sum­mer to be­come chief of staff at the White House.

The Va­can­cies Act was in­tended to make sure a pres­i­dent doesn’t duck his duty to gain ad­vice and con­sent from the Se­nate for top Ex­ec­u­tive Branch of­fi­cials. Congress feared a pres­i­dent could just leave an act­ing of­fi­cial in place for years, never hav­ing to win con­fir­ma­tion.

Un­der the law, jobs can only be va­cant for 210 days — or for 300 days at the be­gin­ning of an ad­min­is­tra­tion.

For jobs that came open on Jan. 20, that means they are only ef­fec­tive through Wed­nes­day.

Un­der the law, any ac­tion taken by some­one in vi­o­la­tion of the Va­can­cies Act is in­valid, and be­comes sub­ject to le­gal chal­lenge. That could have been a se­vere blow to Mr. Trump’s im­mi­gra­tion pol­icy had Mr. Ho­man’s pow­ers lapsed this week, just as he’s over­see­ing the agency’s re­struc­tur­ing of de­por­ta­tion pri­or­i­ties and its fight against so-called sanc­tu­ary cities.

“On Day 301, when­ever that day might oc­cur for a par­tic­u­lar of­fice, the of­fice would be des­ig­nated va­cant, for pur­poses of the Va­can­cies Act, and only the head of the agency would be able to per­form the func­tions and du­ties of that va­cant of­fice,” the Con­gres­sional Re­search Ser­vice said in a le­gal memo ear­lier this month, an­tic­i­pat­ing the loom­ing dead­line.

Agen­cies are sup­posed to sel­f­re­port their va­can­cies to the comp­trol­ler gen­eral, but that process ap­pears to be hon­ored as much in the breach as in the ob­ser­vance.

The GAO said it pe­ri­od­i­cally sends pe­ri­odic re­minders to agen­cies to prod them to re­port, and also ac­cept tips from Congress and the pub­lic. The GAO flagged two vi­o­la­tions ear­lier this year in March for open­ings dat­ing back to the Obama ad­min­is­tra­tion, but all told has noted just nine vi­o­la­tions over the last decade.


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