Document Type
Article
Publication Date
2020
Abstract
In L.M.-M. v. Cuccinelli, Judge Randolph Moss, a federal judge in the District of Columbia, issued an important opinion setting aside policies limiting asylum applications known as the Asylum Directives. The court held that Kenneth Cuccinelli, who issued them, cannot legally serve as “acting” Director of the United States Citizenship and Immigration Services (“USCIS”) under the 1998 Federal Vacancies Reform Act. The opinion is particularly important because its analysis casts doubt upon the legality of a widespread but not closely scrutinized strategy for bypassing Senate confirmation requirements for high-level agency officials. Under this in-the-weeds strategy, the agency head delegates around a vacancy in a Senate-confirmed post, allotting the full suite of responsibilities to an unconfirmed individual, someone typically ineligible to “act” under the FVRA’s qualifications, time limits, or both. (This is in addition to the widely-documented significant reliance on acting officials in lieu of Senate-confirmed officials.)
Recommended Citation
Mendelson, Nina A. "L.M.-M. v. Cuccinelli and The Illegality of Delegating Around Vacant Senate-Confirmed Offices, by Nina A. Mendelson." Yale Journal on Regulation: Notice and Comment (2020).