Notably, the acting head of ICE at the end of the Trump administration did not sign the new labor agreement, which came together during a period of bureaucratic turmoil. One acting director of ICE, Tony Pham, abruptly resigned at the end of December. He was succeeded by Jonathan Fahey, who abruptly resigned on Jan. 13.
Mr. Fahey was replaced by Tae D. Johnson, who did not sign the agreement. Instead, on the signature lines, Mr. Cuccinelli is identified “for the agency” but without a title. Mr. Cuccinelli said it was appropriate for him to sign as the acting deputy secretary, and he did so after gathering guidance from the general counsel.
Before he resigned, Mr. Fahey had for days pushed back against the efforts to bolster the ICE union and ultimately refused to sign the agreement, according to the senior homeland security official familiar with the matter.
The Trump administration had in various ways tried to give Mr. Cuccinelli a senior leadership role in the Department of Homeland Security without going through Senate confirmation, but the legal legitimacy of his appointment to various positions was a recurring dispute.
In 2019, Mr. Trump tried to make Mr. Cuccinelli the acting head of the department’s Citizenship and Immigration Services agency. But in March 2020, a federal judge ruled that his appointment had been illegal, nullifying policies he had made because he lacked the legal authority to be in the position. The Trump administration did not appeal that ruling.
The administration also tried to make Mr. Cuccinelli the No. 2 at the department, giving him the title of senior official performing the duties of deputy secretary. In August, the Government Accountability Office issued an opinion that this appointment was legally invalid as well, although it is not a court ruling.
Mr. Cuccinelli has repeatedly pressured ICE leadership to adopt tougher policies. Soon after joining Citizenship and Immigration Services, Mr. Cuccinelli pushed the agency to add new restrictions to the student visa program, which is under ICE’s authority and not the agency he was supposed to be leading at the time. His actions angered other department officials and prompted an intervention by Kevin K. McAleenan, a former acting homeland security secretary.