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As I understand it, by law, Claire Grady (the Deputy Secretary of Homeland Security) becomes the Acting Secretary of DHS in absence of Nielsen. But it appears that the President is circumventing that law, by appointing someone else to be the acting secretary. Did Ms Grady resign or refuse to perform this role?

(I fully understand that the President can nominate anyone he wishes, but that nomination must be confirmed by the Senate before the nominee has legal authority to perform the task.)

Additional information: 6 US Code 113(g) seems to have precedence over the oft-quoted Federal Vacancies Act (aka 5 US Code 33). The relevant section from the DHS Act states: "Notwithstanding chapter 33 of title 5, the Under Secretary for Management shall serve as the Acting Secretary if by reason of absence, disability, or vacancy in office, neither the Secretary nor Deputy Secretary is available to exercise the duties of the Office of the Secretary." (emphasis added)

UPDATED: Ms Grady has submitted her resignation as of today. So thje question, while interesting for a short period of time is now moot.

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    They covered this in Vox' last Weeds podcast. It seems they realized they had f'ed up a bit late and the DC rumor mill is whispering that Grady might get sacked so Trump's hands aren't tied up. – Denis de Bernardy Apr 10 '19 at 7:04
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Yes, the first Deputy becomes the Acting Secretary by default, but the President can appoint another Senate-confirmed officer from the same agency. In this case, Trump appointed Kevin McAleenan as he was already confirmed by the Senate as a commissioner of U.S. Customs and Border Protection.

Something similar has happened before in DoJ when Matt Whitaker was appointed to serve as Acting Attorney General.

This is covered by Title 5 U.S. Code § 3345 (Acting officer):

(a) If an officer of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office—

(1) the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346;

(2) notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346; or...

These paragraphs were introduced in the Federal Vacancies Reform Act of 1998.

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    However, The US Code on DHS actually seems to override the Federal Vacancies Act: 6 US Code states: (1) Absence, disability, or vacancy of Secretary or Deputy Secretary Notwithstanding chapter 33 of title 5, the Under Secretary for Management shall serve as the Acting Secretary if by reason of absence, disability, or vacancy in office, neither the Secretary nor Deputy Secretary is available to exercise the duties of the Office of the Secretary. So this appointment is dissimilar to that of Matt Whittaker case. – BobE Apr 9 '19 at 17:33
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    @BobE Ouch! This question is much more interesting than I thought it was :) The way I see it, this rule doesn't apply here, as the (acting) Deputy Secretary is not absent, but IANAL, so we'll see how it goes :) – default locale Apr 9 '19 at 17:50
  • @BobE May I suggest including this information into the question itself? This may be useful for future answerers. – default locale Apr 9 '19 at 18:00

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