A notable decision came out of the DC District Court on Sunday. You may wonder what this has to do with guns, but please bear with me.
Judge rules Cuccinelli appointment to top immigration post was unlawful, voiding some asylum orders
[Judge Randolph] Moss said the June 2019 appointment of [Ken] Cuccinelli, a vocal proponent of President Trump’s hardline immigration agenda, violated the Federal Vacancies Reform Act of 1998. The federal judge, an appointee of President Obama, held that Cuccinelli was not eligible to become acting USCIS director last year because the position of principal deputy he initially assumed was not a “first assistant” job, as defined by the 1998 law.
The Federal Vacancies Reform Act is one of those dry, boring laws no one pay much attention to. The vacancies clause of the Constitution grants the President the power to make temporary appointments to some offices without Senate confirmation.
Certain positions, though, were considered important enough to write laws specifying succession should the office be vacated. For those positions, the “first assistant,” automatically steps up and serves temporarily until the President nominates, and the Senate confirms, a permanent replacement.
President Trump bypassed the lawfully designated temporary successor in order to appoint Cuccinelli as acting director of the U.S. Citizenship and Immigration Services. Yesterday the U.S. District Court in Washington, D.C. said no.
Here’s the reason this latest decision, largely impacting the flow of immigrants and refugees, is important to Second Amendment rights. Trump did exactly the same thing in bypassing the lawfully designated “first assistant” to the Attorney General when Jeff Sessions resigned. He appointed Matthew Whitaker, bypassing the Deputy Attorney General at the time.
Whitaker, as acting AG, oversaw the rule-making for the “bump-stock-type devices ban, and signed it on December 18, 2018. It took effect on march 26, 2019.
If, like Cuccinelli, Whitaker wasn’t lawfully appointed to the acting position, then the actions he took in that role have no effect. The administration has tried to dodge that problem by having newly confirmed Attorney General Barr “ratify” the bump stock ban by signing it again.
FPC v. Whitaker/Barr * [the appeal of which the Supreme Court denied earlier today] challenged the validity of Whitaker’s actions, along with the Administrative Procedures Act violations and sheer denial of physical reality. D.C. District Court Judge Dabney L. Friedrich has rejected that challenge, essentially calling Trump’s appointment of an acting AG over the lawfully designated successor close enough for government work.
You can read the plaintiffs’ opening brief in the appeal of that ruling, filed February 26, 2020, here.
Note that two different judges on the same US District Court have have now issued conflicting rulings on FVRA, despite the arguments in both cases being virtually identical, with little changed in the two cases other than the names of those involved.
It’s hard to avoid the conclusion that the letter of the FVRA must be followed if that allows open, unlimited immigration, but it’s OK to be only “close enough” if it permits violating Second Amendment rights.
Then again, I’m cynical.
* Disclosure: My work is cited and I provided information regarding the rule-making process to plaintiffs’ attorneys.