Rep. Bennie Thompson (D-Miss.) recently introduced H.R. 8791 – the Department of Homeland (DHS) Security Reform Act. This bill would change a number of things about how the department operates, and is largely a House Democratic wish list targeting many ways that President Donald Trump and his administration used the department.
If it became law, the 200-plus-page bill would significantly reduce the ability of future presidents to use “acting” officials in senior leadership positions that require Senate confirmation. President Trump only had two Senate-confirmed DHS Secretaries: John Kelly, who became Trump’s Chief of Staff after the departure of Reince Priebus, and Kirstjen Nielsen, who resigned in April 2019. Kevin McAleenan and then Chad Wolf both served in an acting capacity, and Wolf’s tenure, in particular, remains marred in legal controversy.
Politico reported in early November 2020 that a New York-based district judge ruled that the “series of bureaucratic and legal moves that the Trump administration took last year to install Wolf atop the Department of Homeland Security without Senate confirmation were unlawful and invalid.”
President Trump once signaled that he preferred acting officials because it allowed him greater flexibility, in his own characterization of the practice. In addition to Wolf, President Trump installed Ken Cuccinelli as the Acting Director of U.S. Citizenship and Immigration Services (USCIS) as well as the Acting Deputy Secretary of DHS.
House Democrats frequently took issue with both Wolf and Cuccinelli serving as acting officials, and activist lawyers sued the Trump Administration numerous times on the basis that actions ordered by both men were illegal because the Senate did not confirm them to serve in those roles.
The DHS Reform Act would also significantly alter the rules of succession for DHS moving forward. Current law allowed President Trump wide discretion in moving different officials into other positions, largely ignoring existing norms that governed succession at the department and in its agencies. Under the DHS Reform Act, any acting secretary would have to be a Senate-confirmed DHS official or a head of a lower agency under the DHS umbrella. Applying that standard to the Trump Administration, that requirement would mean that someone like Kevin McAleenan service as Acting Secretary would have been legal since he was the Commissioner of Customs and Border Protection (CBP).
Finally, the bill specifically prevents the department and its agencies from engaging in “propaganda.” The language would prevent official publications – including verified social media accounts – from “publicizing a particular political cause or point of view” to include “sending out purely partisan materials, to aid a particular political party or candidate.”
As the Washington Post’s Nick Miroff accurately pointed out on Twitter, Chairman Thompson’s bill is a “Democratic road map for tightening up and depoliticizing DHS in post-Trump era.”
Indeed, the bill is largely a messaging bill from the House Homeland Security Committee Democrats. But it is far from symbolic. Democrats will have control of the House in the 117th Congress, which convenes in January, 2021. It is highly probable that Chairman Thompson reintroduces this bill in the new session and tries to get a vote for it on the House floor.