Department of Homeland Security

The Headless Department of Homeland Security

The lack of Senate-confirmed officers at DHS is a serious problem.

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The Department of Homeland Security has deployed federal agents to help quell unrest in Portland. This move has been controversial, as have the efforts of DHS to defend the conduct of federal agents. In one high-profile instance, federal agents appear to have engaged in unconstitutional conduct, and the officials in charge do not seem to understand what's wrong. (Perhaps it's due to the lack of training.)

Whether or not it is a good idea to send federal agents from agencies within DHS to Portland to help protect federal property (and, for the record, I have no problem with the federal government protecting federal property), it is a serious problem that these decisions are being made and executed by individuals who were not Senate confirmed to their positions (as can be seen on the DHS website).

Let's start at the top. DHS is currently being run by Acting Secretary Chad Wolf. As of yesterday, there had not been a Senate-confirmed Secretary of DHS for 470 days. According to Steve Vladeck, this is the longest ever vacancy for any Cabinet position. Were that not enough, there is not even a nominee for the position, even though the Senate is controlled by the President's party. (It is almost as if the Administration does not want the questioning and oversight that would come from trying to get someone confirmed.)

Not only is there no Senate-confirmed Secretary of Homeland Security, there is no Senate confirmed Deputy Secretary, and only one of the four Under-Secretary positions was filled with by a Senate-confirmed officer. The Under Secretary for the Office of Strategy, Policy, and Plans is Chad Wolf, who is serving as Acting Secretary, so in reality none of the Under Secretary positions is currently being filled by someone who was confirmed by the Senate for that position.

Were that not enough, there is no Senate- confirmed Director of U.S. Citizenship and Immigration Services nor is there a Senate-confirmed Commissioner of U.S. Customs and Border Protection (CBP) or Director of U.S. Immigration and Customs Enforcement (ICE). So the heads of the agencies supplying much of the law enforcement in Portland are not Senate confirmed.

The situation is almost comical. Ken Cuccinelli, aka "@HomelandKen," labels himself as DHS "Acting Deputy Secretary" on his Twitter account, but this is untrue. As the DHS leadership page indicates, he is not the Acting Deputy Secretary (because the position has been vacant for too long). Rather, he is the  Senior Official Performing the Duties of the Deputy Secretary. Apparently that's not a snazzy enough title for Twitter.

Cuccinelli is not alone. Randolph D. "Tex" Alles is the Senior Official Performing the Duties of the Under Secretary for Management,  William (Bill) Bryan is the Senior Official Performing the Duties of the Under Secretary for Science and Technology, and Scott Glabe is the Senior Official Performing the Duties of the Under Secretary for Strategy, Policy, and Plans.

This is a problem because one of the ways in which Congress exercises control and ensures accountability within federal Departments is through the exercise of the Senate's advice-and-consent power. There is also a constitutional concern. Principal officers must be Senate confirmed, so insofar as any of these positions involve the exercise of powers that can only be exercised by a principal officer, we have a problem.

(Note there is an argument that Chad Wolf, who was Senate-confirmed for an UnderSecretary position, could constitutionally exercise the powers of DHS Secretary, but this argument does not work to allow someone who was never Senate confirmed to DHS to exercise the powers of a principal officer position at DHS.)

Reasonable people may differ on the role DHS should or should not play in protecting federal property in cities where protests are accompanied by efforts to deface or destroy courthouses and monuments. But I do not think there is any reasonable argument that these decisions should be made and overseen by individuals who were never Senate confirmed.

UPDATE: It is also worth recalling that at least one DHS agency, Customs and Border Patrol, has longstanding problems ensuring discipline and accountability. As this amicus brief highlights, meaningful discipline for CBP agents who use excessive force is almost non-existent.  Federal courthouses should be protected, but I don't particularly trust CBP to do it.

NEXT: Today in Supreme Court History: July 23, 1936

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  1. No problem with federal troops protecting federal property?

    Ok, what about a problem with federal troops in unmarked uniforms with unmarked cars pretending to be police? Oh, ok as long as it is a Trump operation; horrified if it was a Democratic President. Imagine the outrage if a Democratic President sends federal troops to get armed militia off federal property. Oh, that outrage already happened.

    Look, is there any, and I do many any, conservative principle that the current administration has not violated? Can anyone name one? Yes, I know false conservatives think violating principles is ok if the policy is what one believes in, but I just wonder if there are any true conservatives out there.

    1. LOL. You’re one of those who stays up at night losing sleep over Trump. I can tell.

    2. “Look, is there any, and I do many any, conservative principle that the current administration has not violated?”

      Sure, lots…it’s not got us involved in any foreign wars to spread democracy to unwilling tribalist hordes.

      1. Oh, since conservatives got us involved in Vietnam, Some Carribean island, Iraq (twice) I thought getting involved in foreign wars to spread democracy was a conservative value.

        But ok, as long as you do not count Syria and various other African and Middle East nations I guess you can say Trump has not gotten us involved in foreign wars.

        1. FWIW, while plenty of conservatives supported the Vietnam War, it was definitely not their baby. You can blame Truman, Eisenhower, Kennedy, LBJ (especially), and Nixon for that. The most conservative of those was Nixon, and he wasn’t really very conservative. And as I said, most of the damage by far was done by LBJ, who was a liberal hero.

          1. LBJ is indeed the largest offender of the lot with regard to committing us to a path of war in SE Asia, but he wasn’t for the war, he pressed it to keep the pro-war conservatives from roasting him for “losing” SE Asia the way Truman got it for “losing” China.
            Look at Reagan’s verbiage of the time. Assuming you find Reagan to be a “conservative” to your definition.
            Nixon’s chief offense was not changing course when he certainly could have. Recall that he campaigned on his secret plan to end the war.

          2. My bad, I forgot how those blatant Democratic liberals Robert Kennedy, Eugene Mc Carthy, George McGovern, Mark Hatfield were all out supporters of the Vietnam war. Yes a lot of progressives changed their mind when the reality of Vietnam became clear, but cannot think of any conservatives that did.

            1. Well, the fellow who greatly enlarged VN was LBJ[1], and the guy who got us out was Nixon.

              (Nixon has a lot of entries in the bad side of the ledger, but getting us out of VN was on the good side.)

              [1]Like any alternative history, we’ll never know for sure, but you can make a plausible case that if JFK had lived, he would have pulled his toe out of the VN hot water before it escalated out of control. LBJ didn’t, for political reasons. LBJ owns the results of that.

              1. Vietnam was a bipartisan affair, no doubt. (Though Sidney’s point that the far right loved it a lot more than the far left is a good one)

                But the post-Vietnam Dolchstosslegende has been entirely a creature of the right.

          3. The irretrievable mistake was made by Eisenhower, by double-crossing Ho Chi Minh and calling off elections and splitting the country in two. After that, Ho was going to take over and had no reason to trust us or listen to us. And most Vietnamese agreed with him.

        2. Yea, that’s the point I’m making. Set aside the partisan hatred for a minute.

          Trump hasn’t decided it’s a mandate from God to spread the Enlightenment and it’s values by invading countries to try to set up democracies. You know, like neo-cons like to do. Therefore, he’s violating a conservative principle. I was asked to name one, and well, there it is.

          (p.s. LBJ was responsible for the Golf of Tonken false flag and the escalation in Vietnam, but whatever)

          1. Neat how everyone seems to gloss over the two Iraq’s and Afghanistan, but then cognitive dissonnce has always been a hall mark of the fake conservative movement.

            1. Afghanistan isn’t like the two Iraq ventures.

        3. “Trump has not gotten us involved in foreign wars.”

          Did his best to provoke a war in Korea, which gave him the idea that he should keep the tanks at home so he could parade them through Washington.

    3. No true conservative can back Trump therefore there are no true conservatives.

      Um, I seem to recall some fallacy named after some European province.

      1. If you mean Scotland, you’re probably going to want to avoid any actual Scots hearing you referring to them as a “province”…

        1. Geographic area?

          Former kingdom?

        2. Scotland’s not a province. They voted to remain one, but the English and Welsh outvoted them.

        3. Distillery enclave.

      2. ” No true conservative can back Trump therefore there are no true conservatives.”

        No smart conservative can back Trump therefore there are no smart conservatives among the Trumpfenposse.

        1. Like this comment.

    4. If armed militia were destroying federal property I’d probably understand.

    5. If Portland protestors are mostly peaceful, then why do they only come out between midnight and 4 am? Wouldn’t they want to protest in daylight so more people could hear their message?

  2. Noting that the Senate is currently a majority of “the president’s own party” is a rather specious observation when Democrats can invoke cloture on any and every nomination. The president would actually need 60 republicans in the Senate, not 52, for the “party” thing to be of any significance. Unless you’re suggesting that the GOP ditch the filibuster. I’d actually be for that. The filibuster is not found in the Constitution, after all.

    1. Uh the Democrats removed the filibuster for executive and lower court nominees in 2013.

      1. Indeed. But Trump does not have a Senate majority for his executive appointments. For example he was forced to withdraw Ratcliffe as his DNI nominee, as he didn’t have the votes. Only with the Acting Grenell Gambit was he able to force Ratcliffe through second time round. The Senate, caught between the Devil and the Deep Blue Sea, and having experienced the Devil for a couple of months, hopped in a boat and started rowing for the horizon.

        In fact Trump has been remarkably slow in catching on to the power of Acting folk to arm twist the Senate. The way to go is to start with 30 or 40 loyalist Ambassadors and then put them in Acting charge of everything until the Senate cries Uncle.

        1. You seem to dislike the manner in which our government is designed to operate. Being a disaffected bigot and long-stomped culture war casualty can have that effect, I suppose.

          See you in six months, clinger.

        2. You mean loyalist like the US ambassador in London who spent his time lobbying all and sundry to get them to organise the British Open golf tournament at a Trump-owned course?

          1. “US ambassador in London who spent his time lobbying”

            At least he was doing something. In this day of instant communications, embassies are worthless.

            A few consular officers to issue visas and notarize docs is all anybody needs.

            1. That assumes face to face meetings don’t add value. I think this lockdown has reminded us that they are actually quite important from time to time.

        3. But Trump does not have a Senate majority for his executive appointments.

          Come on, Lee.

          He has a majority for most of them. It’s just the ridiculously terrible, as opposed to the just plain terrible, ones he can’t get through. Is it your opinion that the Republicans in the Senate have not sufficiently reduced themselves to Trumpist toadyism? I thought they were at the limit already.

          1. “Is it your opinion that the Republicans in the Senate have not sufficiently reduced themselves to Trumpist toadyism?”

            That appears to be the opinion of most people this blog attracts.

          2. Yeah, well I think most of Trump’s nominees are pretty terrible too. But on average probably slightly less terrible than Bush’s, who in turn were slightly less terrible than Clinton’s who in turn were a hair less terrible than Obama’s. But if Biden wins, I’m expecting his nominees to out-terrible even Barry’s. So yeah we don’t like nominees who are on the other side, and some of us don’t like most of the rest too.

            Political appointees are unlikely to appeal to folk with different politics – and that’s why Trump has struggled to get hs appointees through a GOP Senate. They have different politics. I’d guess that in the 2016 primaries no more than two or three GOP Senators voted for Trump. And in a secret ballot this year against an average establishment Republican like, say, Paul Ryan, Trump might get 6 or 7 Senators ?

            Take Michael Pack – a fairly Trumpist nominee who Dems hate (why wouldn’t they ?) but perfectly well qualified for his job. He had to wait over a year for even a hearing and he’s just been confirmed after more than two years waiting. That wasn’t because the Dems threw lots of hissy fits – it was because the GOP Senators were happy to use the Dem hissy fits as a good excuse to slow walk him.

            So no the GOP Senate is not composed of Trump toadies. It’s composed – maybe 45 out of 53, of K Streeters who regard Trump as a flea bitten dog lying between them and their monthly paycheck. But they don’t dare kick him away for fear that openly kicking him might cost them their jobs. If he loses bad in November and so loses most of his grip on GOP voter loyalty, it won’t take long for the GOP Senators to make their views known.

          3. “But Trump does not have a Senate majority for his executive appointments. ”

            Or he does, and he’s just fighting the fact that Mitch’s natural inclination is to not do anything. Except tax cuts for wealthy people. THAT can get done.

            1. And judges. Don’t forget the judges.

              1. No, Mitch says that Presidents don’t get to pick judges in the last year of their terms.

                1. Now you’re just being silly, and not even funny silly at that.

        4. Trump doesn’t have a majority for his nominees only because many of them are so terrible that even Senators aligned with his own party and political ideology won’t vote to approve them. This really says nothing other than the fact that Trump is very bad at this aspect of running the federal government, as Adler’s blog post makes abundantly clear.

  3. Der Trumpfenfuhrer rules by decree of his incredible manliness, and needs neither advice nor consent to do anything.

    1. Yes, I agree, the voters know where responsibility lies for policy decisions.

        1. What exactly are you trying to say with that link?

          1. That Trump is losing, but not nearly as much as he ought to.

            1. Ah, well, those polls were spot on last time, so I trust them this time too. Trump may lose, or he may win. Biden isn’t exactly a strong candidate either.

              Anyway, I was prepared to have a semi-erudite exchange about voter knowledge and political accountability. Nevermind.

              1. ” Trump may lose, or he may win. Biden isn’t exactly a strong candidate either.”

                It turns out, you can win a Presidential election just by not being someone. Obama won by not being W, and Trump won by not being Hillary. Biden not being Trump might be all the qualification he needs.

                1. Quite possibly. My thought is that Trump does what Obama did to Romney, or G.H. W. Bush did to Dukakis. In the former, a moderate pol was turned into a racist nazi bigot by lies, slander, and mud-slinging and in the latter a moderate was tied to the wacko fringe that the rest of his party represented. Either of those can get Trump to pull out a win, which would have been in the bag prior to this shutdown stuff, based purely on pocket-book voting models.

                  1. “based purely on pocket-book voting models.”

                    Relying on stupid people turning up to vote GOP has worked in the past, but maybe this time the farmers know why China didn’t buy the soybeans, and won’t join them this time around.

                    1. Are you aware, or maybe you’re not, that like 2% or less of the populace is in the ag business. Anyway, Trump, in classic political fashion is distributing the spoils, as it were, of the tariffs into ag relief. It won’t be an issue.

                      Please, don’t make me laugh. Democrat run cities, like Chicago, for decades upon decades are violent and corrupt kleptocracies nestled inside the rest of the functioning nation-state. The voters there keep returning the dems to power, regardless. Are democrat voters stupid?

                      In a more serious note, there are two main models of voter decision-making. The first is pocketbook, the second is based on personal identification. That is, voters think family/friends say Dems good, therefore me want to be good, therefore me Dem and me vote Dem. Swap out GOP for Dem as this goes both ways. These folks, that based upon personal identification aren’t stupid per se. And there are lots of them in both parties.

                    2. “Please, don’t make me laugh”

                      Donald Trump is your candidate. You aren’t in a position to make this demand.

  4. This is kinda like when the GOP kept there from being a head of the ATF for a while. Not particularly worrisome in the scheme of things.

    1. This is a problem is because one of the ways in which Congress exercises control and ensures accountability within federal Departments is through the exercise of the Senate’s advice-and-consent power. There is also a constitutional concern.

      1. …and? I’m not saying it’s not a problem, just that it’s not MUCH of a problem. Frankly, the riots/arson/looting and civil unrest are much more immediate, wouldn’t you think?

        Eventually the ATF got a director. Eventually, in a few months, after the election, DHS will get a new director.

        1. Every person who actually burns, loots or vandalizes should be arrested and charged. Nothing could be more routine.

          The overwhelming majority of citizens on the streets peacefully protesting, many of whose Constitutional rights are being violated by the most proudly authoritarian administration in my lifetime merits less concern for you?

          OK, got it.

          1. Yea, got it. But your point is entirely orthogonal to the issue at hand, that is, DHS has no Senate confirmed head. I’m saying that is not much of a problem compared to the civil unrest and other crimes. Which is the bigger problem? Yea, both are a problem, but what’s the more immediate one?

            1. DHS has not Senate-confirmed head. In theory this means that DHS can’t do much of anything. They shouldn’t be doing much of anything, but that’s not what’s actually observed. That IS a problem. Even more of one if you have an opposition to government, which many conservatives claim. I don’t find the raging out-of-control, statue-hating mobs to be a concern at all, because I am not a statue, Confederate or other. Westworld is fiction, so they won’t be fighting back.

          2. ‘peacefully’

            1. That’s right: “overwhelming majority… peacefully”

        2. You need to get your information from somewhere other than videos on Fox.

          Most of the demonstrators are peaceful. Let the police arrest the troublemakers.

          Let’s not have the “pro-active” arrests Wolf was talking about.

          1. I don’t watch Fox News.

            Most of the demonstrators have been peaceful…but so were the alt-right at Charlottesville. Right? It doesn’t take many folks with molotov cocktails and such to need a response. Wasn’t the federal courthouse just set aflame yesterday or today?

            1. Plenty of the demonstrators at Charlottesville were peacefully carrying lit torches and chanting ‘Jews will not replace us . . . blood and soil . . . ”

              Essentially what one would expect from a gathering of peaceful, hateful, racist conservatives, right-wing militias, and disaffected, bigoted clingers.

              1. Well, rev, I suppose I wouldn’t expect any more or less than what we currently get from the “peaceful,” hateful, racist blacks, left-wing antifa thugs, and disaffected, bigoted basement dwellers who can’t make it in civil society.

                1. If we’re working on the theory that a group is responsible for anything anyone remotely associated with the group does, Charlottesville provoked a murder, as did a right-wing rally in Portland. Meanwhile, leftist (probably) groups have toppled Confederate statues. Murdering dead guys is not quite equivalent to murdering live people, and neither group claims credit for the actions of their more-deranged associates, anyway.

                  1. There have been at least 3 BLM protest caused murders in Minneapolis.

                    1. Sure there have.

                  2. I’d like some actual proof that DHS is beating up completely peaceful crowds rather than twitter claims that later invariably turn out to be disproven by actual video evidence.

                    1. Maybe take it up with someone claiming DHS is beating up crowds.

                    2. They sure are gassing peaceful crowds.

        3. Yeah, who needs such an avenue for Congressional oversight of the agency they set up? Trump doesn’t deserve oversight as he takes back the streets!

          Clearly following our constitutional system is a minor issue compared to demonstrations that were no longer making the news until the Feds showed up and escalated everything.

          1. “were no longer making the news ”

            They existed in Portland for weeks whether or not the “news” covered them. A federal agent was hurt by a small sledgehammer weeks ago in one of the many efforts to enter the courthouse.

            1. Lesson being “don’t get in the way of a sledgehammer”.

            2. Not making the news is not saying they weren’t existing, it’s saying they were of substantially smaller moment.

              Certainly your example could have happened during a protest. And gotten someone arrested.

              The only civil unrest is created by the actions of Trump.

        4. Puh-lease. Do you think if a Trump appointed loyalist were in charge, anything would be different? Furthermore, there have been long spells with vacancies, in very trying times, with out this hand-wringing. Even more, there have been non-Senate approved people doing even more important activities in the service of one administration or another.

          I’m not saying it’s not a problem, but that it’s not that big of a problem compared to the more immediate civil unrest.

          1. That’s kind of the point – a Trump appointed loyalest would have had some price to pay on the record during advise and consent.

            Cut the crap with the ‘everyone does it.’ Trump is far and away pushing beyond the time limit one can be authorized to be in an acting position.

            1. Way to reframe my historical references to “everyone does it.” Historical norms don’t matter to you I suppose, those are for suckers, eh?

              What would be “some price?”

              Yes, and like I said…it’s a problem…just not a big one (when we look at historical norms) compared to the civil unrest currently underway. What matters more to you, scoring some internet points against Trump or burning buildings? Wait, don’t answer that, I already know.

              What do you expect? No politician of any stripe is going to want to undergo what would no doubt be a bruising nomination fight (even if he nominated a saint) a few months before an election. The Dems would take the opportunity to strut and posture, just like the GOP did with ATF directors, or the left did with Bolton and Bush, etc. etc. And honestly, I don’t know how much of this is the fault of the Senate, in that even if Trump were to name a person tomorrow, when would the Senate actually act on it?

              1. The civil unrest is being fomented by these unconfirmed actings.

                You don’t get to decide advise and consent is no longer convenient and Congress probably doesn’t wanna anyhow. It’s in the Constitution.

                As was noted, this isn’t Congress failing to act, it’s Trump failing to do his Constitutional duty yet again.

                Your flexible principles shame you.

                1. I never said *I* get to decide anything, I am saying that it’s not that big of an issue, in compared to the civil unrest. I never said it wasn’t a problem…just that it wasn’t much in comparison to the civil unrest. Why is that so difficult for you to understand? And “unconfirmed actings”. You’re just looking really, really hard for something to get upset about. That wascally wabbit Trump! You’re like Elmer Fudd here upset that Trump won’t play along with it being rabbit season.

                  Nice try at a boomerang there on principles, but you already face punched yourself in this thread. Anyway, you may recall a similar thread recently, where I noted how many presidents have unconfirmed lawyers and personal ambassadors abroad. I noted it wasn’t that big of a deal then and I am saying it isn’t now.

                  1. You’re deciding, for your own self, that the Constitution is really more of a guideline.

                    Make of that what you will.

                    1. I’m in no position of authority in impose my preferences over another. I’m making my opinion known, as are you.

                      As for saying that you think I’m saying that the Constitution is “more of a guideline”, that is the silliest, most laughable comment coming from a supporter of the Obama administration and the ACA that I’ve ever heard. Why are you such a masochist to face punch yourself again in this thread. Obama flouted constitutional norms and the actual specifics in black and white, routinely. Frankly, all administrations do. Get back to basics and re-read Federalist 10, will ya already.

                    2. Hold up. What, exactly is the part of the ACA where Obama did anything?
                      As the last A in the name suggests, the ACA was a legislative act. Obama wasn’t a legislator at the time.

                    3. The president is part of the legislative process JP, without his signature, apart from a few exceptions, nothing becomes law. And Obama used the bully pulpit to push for Obamacare, and had a big part in drafting it. Obama owns Obamacare. The Supreme Court said a portions of it was unconstitutional, and moreover, changed the penalty to a tax to make the rest of it constitutional.

                      Therefore, when a big Obama fan says to me “but muh norms” and “but muh constitution” I know they are defending norms and the constitution because it is in there interest when Trump is in power to do so. Why do you think I said to Sarc to re-read (assuming he’s ever read it in the first place) Federalist 10 and to get back to me.

                    4. “The president is part of the legislative process JP, without his signature”

                      OK, yuh got me (sort of). Obama did in fact sign the ACA. Which he is Constitutionally permitted to do, so that isn’t the unconstitutional action you were talking about.

                      ” The Supreme Court […] changed the penalty to a tax to make the rest of it constitutional. ”

                      They recognized a tax as a tax and (correctly) noted that Congress is empowered to levy and collect taxes by the Constitution. And, of course, Obama isn’t on the Supreme Court (at least, not yet) so this isn’t the unconstitutional part either.

                    5. You forget about the part of Obamacare declared unconstitutional that compelled states, but I’d expect that.

                      I will take what I can get. You blamed legislators for Obamacare, and now I get you to admit Obama’s staff helped draft it and Obama signed it. Getting you to admit that the president is part of the legislative process is something. Congrats on your intellectual humility.

                      And it was a penalty, said it was a penalty, and it was marketed as a penalty, and Roberts made it a tax. It was a saving construction to make the law constitutional, and everyone who thinks the sky is blue admits it. Actual constitutionality of the penalty didn’t matter, Obama cared only about making the bill into law.

                      The point is, that it’s disingenuous for an Obama and Obamacare fan to suddenly stand on the principles of “the constitution” (TM) when Obama flouted the constitution routinely, and with his signature policy initiative.

                    6. M_K, I believe that the ACA is Constitutional.
                      You admit this action is unconstitutional and you don’t much care.

                      Those two things are not the same.

                    7. Why must you insist on mischaracterizing my arguments?

                      I care. I would actually prefer where everyone followed the Constitution! But think that the civil unrest is more important to deal with, when everything is a series of trade-offs. You want to hunt squirrels, when there is bigger game about. It’s called realpolitik.

                      Also, while this is not an argument, per se, I’m also pointing out your hypocrisy. You’re captured by faction. That’s only human. While *you* believe that Obamacare was constitutional, the Court said portions of it weren’t, and had to rewrite another portion to make it so. Not to mention the “dreamers” allowed to stay, etc, amongst Obama’s other unconstitutional acts.

                    8. Someone can disagree with the Supreme Court and not hate the Constitution. I’m certainly a hypocrite in some ways, but this is not one of them.

                      You, on the other hand, don’t care enough to even bother saying Trump is wrong here.
                      That’s less caring that I had about taking down Confederate statutes.

              2. Don’t argue with Soros bots. They fail at basic logic. Their tactics boil down to whataboutisms, straw men, red herrings, incorrectly reversing implications, no true scotsmen, and screeching appeals to emotions. This guy is a fraud and an idiot.

                1. They, they, THEY! Look out for THEM They’re everywhere!

  5. Jonathan H. Adler’s Tweet:
    Reminder: it is possible to oppose destruction and defacement of federal property AND federal agents acting as goon squads. They’re both bad things.

    1. Absolutely. And given that this site is hosted by a Libertarian publication, I would expect more outrage from the Libertarians who visit here.

      1. Extremely few libertarians visit the Volokh Conspiracy. This blog’s libertarian drag is unconvincing to the point of being cartoonish.

        1. Yes Artie, you are extremely cartoonish, as is most of the lefty squad who posts here, parades around pretending to be part of the “liberal-libertarian whateverother-keyboard-vomit-you-can-think-of alliance” and calls everybody who doesn’t agree with them “Trump apologists” and such.

          Also, no true Scotsman. You’re welcome Sarcastr0, I caught that one for you.

          1. If you ever saw an actual leftist you’d be more likely to confuse them for a Trump supporter than for any of the moderates and liberals here that you think are leftist.

          2. I am Arthur. Artie was banned by the Volokh Conspiracy’s content-driven Board of Censors for making fun of conservatives.

          3. If you object to being called a “Trump apologist”, stop providing apologia for Trump.

    2. True, but I still have not been presented credible evidence of these “goon squads”. In Chicago, where violence is now no longer being carried out by Mostly Peaceful Protesters (TM), but rather gangs, DHS’s deployment is being coordinated with the CPD and the mayor.

      The reason Portland’s situation is so unique is because the local officials are standing with those committing violence.

  6. There is also a constitutional concern. Principal officers must be Senate confirmed, so insofar as any of these positions involve the exercise of powers that can only be exercised by a principal officer, we have a problem.

    What is the problem ? If you’re right that “these positions involve the exercise of powers that can only be exercised by a principal officer” and they’re being exercised by people who aren’t principal officers, then it’ll take a District Court about a minute and a half to void them. It’s hardly as if the judiciary has been paralysed into inactivity during the Trump term. Or has it ?

    Secondly, I seem to recall from previous threads about acting folk that there are all sorts of statutes allowing deputies and other non Senate confirmed people to Act for a short period. Are these statutes unconstitutional ? Why have the courts not said so ? Are we back to that theory of District Court Judges sitting paralysed by the stare of the Trumpalisk ?

    Putting Headless Chicken mode aside for a moment, is there any legal reason why the DHS is operating more illegally than any other department that has operated with Acting folk at the helm ? And if so why haven’t the courts stopped it ?

    1. t’ll take a District Court about a minute and a half to void them

      It would, if there was someone with standing to sue. And if people are being released rather than formally charged with anything, that’s not so easy.

      1. Perhaps, but these people presumably take other decisions too. It seems unlikely that the DHS was entirely inactive until a week ago.

    2. ” If you’re right that “these positions involve the exercise of powers that can only be exercised by a principal officer” and they’re being exercised by people who aren’t principal officers, then it’ll take a District Court about a minute and a half to void them.”

      Unlike your computer system, real life does not have an “Undo” button.

  7. After the past several months of severe and arbitrary curtailment of basic freedoms of movement and association across the country simply by invoking the word “emergency,” I just l-o-v-e LOVE the pious chin-stroking that the full contours of 4A law are somehow sacrosanct even in the midst of a genuine and immediate threat to physical safety.

    1. I think the issue is that there are a lot of people being physically (and grievously) injured who aren’t immediate threats to anyone’s safety.

      1. Sure, if the default assumption is to (1) uncritically believe any post-hoc rationalization of someone who voluntarily put themselves in the midst of a tinderbox mob and ended up getting hurt, and to (2) uncritically discount the perspective of any of the law enforcement personnel on the ground that is inconsistent with (1).

        My sneaking suspicion is that, as with most things in the real world, it’s more complicated than that.

        1. There really isn’t anything complicated about watching a guy get his arm shattered while he’s just standing there. Nor is there anything complicated about unarmed people losing eyes through the indiscriminate firing of projectiles.

          1. No idea what specific incidents you’re talking about or the context in which they arose. And playing motte and bailey with cherry-picked examples doesn’t change my broader points at all.

    2. You don’t like this one thing because you think it’s unconstitutional.

      Therefore you’re going to endorse this other thing even though you think it’s unconstitutional.

      Principles are for suckers, eh?

      1. They’re cuck. Principles are cuck.

      2. Endorse? Not engaging with you and your troll shtick today.

        Principles are for suckers, eh?

        Principles left the barn months ago. Which was my point.

        1. Condone, endorse, whichever.

          Nihilism will let you justify any evil, but it’s no way to go through life.

    3. #MakeAmericaSickAgain

  8. There is a difference between the political appointment guys and the career guys.

    The career guys aren’t use to having to deal with the optics of politics. To them it is a simple equation. Federal property is being destroyed. They have jurisdiction to protect it. Protecting federal property from destruction is “rule of law” and in the public interest. Therefore, send in federal agents to do it if the state won’t provide that type of policing. Done and done. Simple, right?

    The political guys are going to be the ones assessing the optics of such an operation. It isn’t that they wouldn’t come to the same conclusion, just that the actions are going to look completely different.

    It also doesn’t help that the Feds have huge stockpiles of “toys” that don’t get used all that often. When you have hundreds of crates of tear gas sitting around in the basement of the courthouse you aren’t going to mind throwing quite a few canisters, especially if you don’t get the opportunity to do crowd control a lot as a federal LEO.

  9. Senate confirmation is just a credential, it says nothing about the value or competence or ethics of the confirmed. We have seen over two centuries, from both parties, appalling people confirmed and good people rejected.

    Trump wants Cuccinelli in a leading role, Mitch hates him so all this “Acting” and “Senior Officer” stuff flows from this political reality.

    Is Wolf worse than Kirstjen M. Nielsen, John F. Kelly, Jeh Charles Johnson, Janet Napolitano, Michael Chertoff or Tom Ridge? IDK but the fact that they were confirmed doesn’t answer the question.

    1. Watching birthers dismiss “credentials” is great sport.

      Almost as much fun as stomping right-wingers into political and cultural irrelevance in the culture war.

      1. There is one purpose your presence here serves, if nothing else. It’s a reminder that “yes, they do hate us”. Sadly, I think your type of lunacy is an increasingly larger share of the left.

        1. It must suck to be the focus for so much hating.

          1. If you make the mistake of caring to much. Would you include yourself, because you sure act like you hate the loyal opposition. I, however, love my enemies, even as I acknowledge the danger they pose.

            1. WTF are you babbling about?

  10. Sure, Trump’s a lawless authoritarian, but at least his election campaign stands for our foundational principles in a totally non-ironic way.

    1. This the campaign that claims their opponent is too old and infirm to be President, while their guy needs two hands to operate a glass of water?

  11. To be truthful this is one of the less consequential effects of Trump’s laziness and incompetence. Anyone he nominates to run the DHS will be: 1) an unqualified toady, who will be 2) confirmed by the prostrate Republican Senate, and 3) will bend to his whim just as much as the present office holders do.

    1. can’t argue with your hypothesis, but letting the Mitch mob off the hook by saying “hey it was Trump, not us!” doesn’t help fix anything.

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