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2019–2021 Department of Homeland Security appointment disputes

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U.S. Customs and Border Protection Commissioner Kevin McAleenan (left) served as Acting Secretary of Homeland Security from April to November 2019, and was followed in that position by Under Secretary of Homeland Security for Strategy, Policy, and Plans Chad Wolf (right). Both appointments as acting secretary were found invalid by the Government Accountability Office in August 2020, and by a federal judge in November 2020.
Ken Cuccinelli was appointed acting Director of U.S. Citizenship and Immigration Services in June 2019, and Acting Deputy Secretary of Homeland Security in November 2019. The first appointment was ruled invalid by a federal judge in March 2020; the second was found invalid by GAO in August 2020.

Beginning in 2019, multiple appointments of acting officials in the United States Department of Homeland Security (DHS) were questioned, on the basis of whether the appointments were legal under the Federal Vacancies Reform Act of 1998 and the Homeland Security Act of 2002. After the departure of Secretary Kirstjen Nielsen in April 2019, the Trump administration did not formally nominate a new secretary to be confirmed by the Senate, relying on acting postings.[1]

The disputed appointments were those of Kevin McAleenan and Chad Wolf as Acting Secretary of Homeland Security, and Ken Cuccinelli as Senior Official Performing the Duties of both the Deputy Secretary of Homeland Security and the Director of United States Citizenship and Immigration Services (USCIS). The dispute on the Secretary and Deputy Secretary appointments centered on the fact that the issued text of an amendment to the order of succession deviated from the intention of then-Secretary Nielsen, placing a different person than expected next in line. The dispute on the USCIS appointment centered on whether a newly created Principal Deputy Director position was validly the "first assistant" to the Director under the Federal Vacancies Reform Act.

On March 1, 2020, the District Court for the District of Columbia ruled that Cuccinelli was not lawfully appointed to serve as acting USCIS Director and invalidated certain actions taken by him; the government dropped its appeal of this case in August 2020. On August 14, 2020, the Government Accountability Office released a finding that McAleenan, Wolf, and Cuccinelli had been appointed improperly to their Acting Secretary and Deputy Secretary positions; the DHS rejected this finding.

On November 14, 2020, the District Court for the Eastern District of New York ruled that Wolf was not lawfully serving as Acting Secretary of Homeland Security and overturned all of his orders as lacking "legal authority".[2] Wolf resigned his post on January 11, 2021, after a number of similar court rulings.[3]

Background

The Federal Vacancies Reform Act of 1998 (FVRA) specified procedures for filling vacant offices, allowing the President to direct a person serving in a different Senate-confirmed position to serve as acting officer.[4][5] The Homeland Security Act of 2002 (HSA) established the Department of Homeland Security and the position of the Secretary of Homeland Security. The line of succession to the Secretary was specified through a series of executive orders, the most recent of which was Executive Order 13753 of December 9, 2016, which specified the line of succession when the Secretary had "died, resigned, or otherwise become unable to perform the functions and duties of the office of Secretary".[4][6]

The National Defense Authorization Act for Fiscal Year 2017, signed into law on December 23, 2016, amended the HSA to create new procedures for specifying the line of succession for the Secretary as an exception to the procedures in the FVRA. Specifically, it specified that the Under Secretary of Homeland Security for Management must be third in line to the Secretary position, and second in line to the Deputy Secretary position. It also allowed the Secretary rather than the President to specify the further lines of succession, and did not specify a time limit to the eligibility of acting officials as the FVRA had done.[4][7]

The Secretary specified succession through DHS Delegation 00106, which went through a number of revisions. By February 2019, it stated that Executive Order 13753 still held in the case of death, resignation, or inability; and provided an "Annex A" specifying the succession if the Secretary became "unavailable to act during a disaster or catastrophic emergency", although the order of succession was the same in both cases.[4][8]

Disputed appointments

McAleenan and Wolf as Acting Secretary

Further information: United States Secretary of Homeland Security § Order of succession
Succession order for Secretary of Homeland Security
according to DHS Delegation 00106 as of April 9, 2019


In case of death, resignation, or inability
1. Deputy Secretary of Homeland Security (vacant)
2. Under Secretary of Homeland Security for Management (vacant)
3. Administrator of the Federal Emergency Management Agency (vacant)
4. Director of the Cybersecurity and Infrastructure Security Agency Chris Krebs
5. (other officials)

if unavailable to act during a disaster or catastrophic emergency:
1. Deputy Secretary of Homeland Security (vacant)
2. Under Secretary of Homeland Security for Management (vacant)
3. Commissioner of Customs and Border Protection Kevin McAleenan
4. Administrator of the Federal Emergency Management Agency (vacant)

5. (other officials)

Kirstjen Nielsen served as the Senate-confirmed Secretary of Homeland Security from December 5, 2017, until April 10, 2019. On April 9, 2019, Nielsen had issued a new revision of Delegation 00106 that updated Annex A, but left Executive Order 13753 in place in the case of death, resignation, or inability. At the time, DHS referred to Annex A, which had Customs and Border Protection Commissioner Kevin McAleenan as next in line, rather than Executive Order 13753, which had Cybersecurity and Infrastructure Security Agency Director Chris Krebs as next in line. While Nielsen demonstrably intended to place McAleenan next in line, and a memorandum from the DHS General Counsel to Nielsen contained ambiguous language, the actual issued text of the amended Delegation 00106 unambiguously placed Krebs next in line. McAleenan served as Acting Secretary, at least in a de facto capacity, from April 11 until November 13, 2019.[4][8]

On November 8, 2019, McAleenan issued another revision of Delegation 00106, which specified Annex A as the line of succession for all situations, and placed the Under Secretary for Strategy, Policy, and Plans fourth in line for the Secretary position. Upon McAleenan's resignation, Chad Wolf began serving de facto as Acting Secretary on November 13, 2019.[4][8]

Cuccinelli as Acting USCIS Director and Deputy Secretary

Ken Cuccinelli was appointed to serve in the newly created position of Principal Deputy Director of the United States Citizenship and Immigration Services (USCIS) in June 2019. This was intended to make him the "first assistant" to the Director position, making him eligible to immediately become its acting director.[9][10]

On November 13, 2019, the day he assumed office, Wolf amended Annex B of Delegation 00106 specifying the order of succession for Deputy Secretary, placing the Principal Deputy Director of Citizenship and Immigration Services second in line after the Under Secretary for Management, thus specifying Cuccinelli as Senior Official Performing the Duties of the Deputy Secretary.[4]

Controversy

USCIS appointment

In a June 18, 2019 letter to the Acting Secretary of Homeland Security, House committee chairs Jerry Nadler, Elijah Cummings, and Bennie Thompson alleged that Cuccinelli's brief appointment as Principal Deputy Director had been retroactively applied, possibly in violation of the FVRA.[11] The USCIS employees union also challenged the legality of Cuccinelli's appointment.[12]

In September 2019, a lawsuit was filed challenging his asylum directives, partially on the basis that his appointment was invalid.[13] On March 1, 2020, Judge Randolph D. Moss of the United States District Court for the District of Columbia ruled that Cuccinelli was not lawfully appointed to serve as acting director, on the basis that the novel nature of the Principal Deputy Director position meant that he had never served as the "first assistant" to anyone. He therefore lacked authority to issue two of the directives challenged in the lawsuit. Because the case was not filed as a class action, Moss was "unconvinced" that his relief should be extended to other asylum seekers not part of the original suit.[14][15]

On August 12, 2020, the government dropped its appeal in the case.[16]

Secretary and Deputy Secretary appointments

Kevin McAleenan being sworn in as DHS Acting Secretary by Kirstjen Nielsen in April 2019. DHS used this photograph to argue that Nielsen had intended to and had legally placed McAleenan next in line to become Acting Secretary, validating the later appointments of Wolf and Cuccinelli.[17]

Government Accountability Office finding

On November 15, 2019, House Democrats Bennie Thompson and Carolyn Maloney requested that Comptroller General of the United States Gene Dodaro review the legality of Wolf's appointment on the basis that former Acting Secretary McAleenan did not have authority to change the department's line of succession, asserting that former Secretary Nielsen had not properly placed McAleenan first in the line of succession before resigning and that McAleenan's change came after the 210-day limit to his authority had expired.[18][19][20]

On August 14, 2020, the Government Accountability Office released a finding that McAleenan, Wolf, and Cuccinelli had been appointed improperly,[21] noting that:

Upon Secretary Kirstjen Nielsen's resignation on April 10, 2019, the official who assumed the title of Acting Secretary had not been designated in the order of succession to serve upon the Secretary's resignation. Because the incorrect official assumed the title of Acting Secretary at that time, subsequent amendments to the order of succession made by that official were invalid and officials who assumed their positions under such amendments, including Chad Wolf and Kenneth Cuccinelli, were named by reference to an invalid order of succession.[4]

Dodaro referred the matter to Department of Homeland Security Inspector General Joseph V. Cuffari to review the questions of who should be serving in these positions, the legality of other actions taken by McAleenan, Wolf, and Cuccinelli.[4][21] Under the line of succession found valid by GAO, the Acting Secretary as of August 2020 would be Federal Emergency Management Agency Administrator Pete Gaynor.[22] Although GAO findings are not legally binding, it was expected to affect several pending court cases, including Wolf v. Vidal, where plaintiffs had argued that rules issued by McAleenan, Wolf, and Cuccinelli were void because they had been improperly appointed.[16][23][24]

On August 17, the Department of Homeland Security's Acting General Counsel issued a statement rejecting the GAO's finding, saying that Nielsen had in fact legally appointed McAleenan as Acting Secretary. To support this they stated the fact that she had personally sworn him in, and announced in a public email that he was the incoming Acting Secretary, as evidence of her intention. They also pointed to a preliminary memorandum from the DHS General Counsel to Nielsen that, unlike the text of the actual DHS Delegation, included ambiguous language. They also criticized the timing of the finding, noting that GAO had taken over eight months to issue the finding, and released in just 80 days prior to the 2020 United States elections, and asserted that the validity of the appointment was outside the GAO's jurisdiction because it was made under the HSA and not the FVRA.[17][25][26]

On August 21, GAO declined to retract or amend their findings, saying that DHS had not provided any evidence of material errors of fact or law in the finding, and that all their points had already been considered in the finding.[27][28]

On August 25, President Trump announced that he would nominate Wolf to be confirmed by the Senate as the permanent Secretary of Homeland Security.[29][30] The nomination was formally submitted to the Senate on September 10. The same day, FEMA Administrator Pete Gaynor, who was highest official in the proper Acting Secretary succession order, issued a memo designating the same order of succession that was intended to be established by McAleenan, in order to make Wolf the proper Acting Secretary. Wolf then issued a memo reaffirming his previous actions as Acting Secretary.[31] However, on November 13, DHS admitted in a court ruling that Gaynor's memo had apparently been issued about an hour before the Senate nomination had been made, which may affect its legality.[32]

On September 11, 2020, federal judge Paula Xinis ruled that Wolf was likely unlawfully serving as acting secretary of the Department of Homeland Security. On that basis, the court issued an order barring the enforcement of rules Wolf had created.[33][34] Likewise, on November 14, Judge Nicholas Garaufis of the U.S. District Court for the Eastern District of New York ruled that Wolf was not lawfully serving as Acting Secretary of Homeland Security due to the improper appointments of McAleenan and Wolf.[35] In addition to finding the 2019 McAleenan memo ineffective, Garaufis ruled that the 2020 Gaynor memo was also ineffective because DHS had not fulfilled legal formalities about notifying Congress for Gaynor to serve as acting secretary. Nevertheless, Gaynor issued a duplicate memo on November 17, 2020.[36]

Other courts soon followed suit. On January 8, 2021, Judge James Donato of the U.S. District Court for the Northern District of California became the fifth judge to rule that Wolf was not lawfully acting as the Acting Secretary of Homeland Security.[37][38][39] Wolf resigned his post three days later, saying his action was "warranted by recent events, including the ongoing and meritless court rulings regarding the validity of my authority as acting secretary."[3]

References

  1. ^ Macagnone, Michael (January 7, 2021). "Trump pulls Homeland Security nomination after criticism". Roll Call. Retrieved February 3, 2021.
  2. ^ Gerstein, Josh (November 14, 2020). "Judge: Trump appointee lacked authority to rein in DACA". POLITICO.
  3. ^ a b Kanno-Youngs, Zolan (January 11, 2021). "Chad Wolf has resigned as acting secretary for the Homeland Security Department". New York Times.
  4. ^ a b c d e f g h i "Department of Homeland Security—Legality of Service of Acting Secretary of Homeland Security and Service of Senior Official Performing the Duties of Deputy Secretary of Homeland Security" (B-331650). U. S. Government Accountability Office. August 13, 2020. {{cite journal}}: Cite journal requires |journal= (help)
  5. ^ Brannon, Valerie C. (July 20, 2018). "The Vacancies Act: A Legal Overview" (PDF). U.S. Congressional Research Service. pp. 9–13. Retrieved November 8, 2018. Public Domain This article incorporates text from this source, which is in the public domain.
  6. ^ "Amending the Order of Succession in the Department of Homeland Security". Federal Register. December 14, 2016. Retrieved August 17, 2020.
  7. ^ McCain, John (December 23, 2016). "Text - S.2943 - 114th Congress (2015-2016): National Defense Authorization Act for Fiscal Year 2017". www.congress.gov. Retrieved August 17, 2020.
  8. ^ a b c "Letter from Thompson and Maloney to Dodaro" (PDF). Archived from the original (PDF) on August 21, 2020. Retrieved August 17, 2020.
  9. ^ Ainsley, Julia (June 10, 2019). "Trump taps conservative Ken Cuccinelli to head citizenship agency". NBC News. Retrieved June 10, 2019.
  10. ^ Hesson, Ted (June 10, 2019). "Cuccinelli starts as acting immigration official despite GOP opposition". Politico. Retrieved October 18, 2019.
  11. ^ Nadler, Jerrold; Cummings, Elijah E.; Thompson, Bennie G. (June 18, 2019). "We write to express our deep concern over the June 10, 2019 appointment of Ken Cucinelli as Acting Director of U.S. Citizenship and Immigration Services (USCIS)". Letter to Kevin K. McAleenan, Acting Secretary of Homeland Security. U.S. House of Representatives committees on Judiciary, Oversight and Reform, and Homeland Security.
  12. ^ Lapan, Tovin (June 21, 2019). "Why Trump's USCIS Pick Might Be His Most Controversial Yet". Fortune. Retrieved July 27, 2019.
  13. ^ Sands, Geneva (September 6, 2019). "Lawsuit challenges Ken Cuccinelli's legitimacy to direct immigration agency". CNN. Retrieved November 1, 2019.
  14. ^ Sands, Geneva (March 1, 2020). "Judge says Ken Cuccinelli unlawfully appointed to lead US immigration agency". CNN. Retrieved March 1, 2020.
  15. ^ Miroff, Nick (March 1, 2020). "Ken Cuccinelli's appointment to top immigration job was unlawful, court rules, invalidating policy memos he signed". The Washington Post. Retrieved March 3, 2020.
  16. ^ a b Walerius, Randolph; Misra, Tanvi (August 14, 2020). "GAO says Wolf, Cuccinelli appointments at DHS invalid". Roll Call. Retrieved August 15, 2020.
  17. ^ a b Mizelle, Chad (August 17, 2020). "Letter from DHS Office of General Counsel to GAO on DHS Succession" (PDF).
  18. ^ Cramer, Harrison; Cohen, Zach C. (November 11, 2019). "Inside Trump's Gambit To Install Another Acting DHS Secretary". National Journal. Archived from the original on November 15, 2019. Retrieved November 15, 2019.
  19. ^ Bublé, Courtney (November 15, 2019). "Top Democrats Call for Emergency Review of DHS Appointments". Government Executive. Archived from the original on November 15, 2019. Retrieved November 15, 2019.
  20. ^ Misra, Tanvi (November 15, 2019). "Legality of Wolf, Cuccinelli appointments to DHS questioned". Roll Call. Archived from the original on November 15, 2019. Retrieved November 15, 2019.
  21. ^ a b Cheney, Kyle (August 14, 2020). "GAO finds Chad Wolf, Ken Cuccinelli are ineligible to serve in their top DHS roles". Politico. Retrieved August 14, 2020.
  22. ^ Rosenzweig, Paul (August 14, 2020). "So Who Actually IS In Charge of DHS?". Lawfare. Retrieved August 14, 2020.
  23. ^ Douglas, Genevieve; Courtney, Shaun (August 25, 2020). "Trump DHS Nominee Chad Wolf Faces Confirmation Opposition". Bloomberg Law. Retrieved August 26, 2020.
  24. ^ "Federal, DHS Succession Rules Were Not Complied With To Fill Agency's Top Positions, GAO Reports". JD Supra. Retrieved August 23, 2020.
  25. ^ Mazmanian, Adam (August 17, 2020). "DHS slams assertions that leaders were illegally appointed -". FCW. Retrieved August 22, 2020.
  26. ^ Lambe, Jerry (August 18, 2020). "'An Agency Gone Mad': DHS Unleashes Personal Attack on GAO Employee Who Concluded Cuccinelli and Wolf Were Illegally Appointed". Law & Crime. Retrieved August 22, 2020.
  27. ^ "Department of Homeland SecurityꟷLegality of Service of Acting Secretary of Homeland Security and Service of Senior Official Performing the Duties of Deputy Secretary of Homeland SecurityꟷReconsideration". U. S. Government Accountability Office (B-332451). August 21, 2020.
  28. ^ Mazmanian, Adam (August 21, 2020). "GAO rejects bid by DHS to rescind opinion on illegal appointments -". FCW. Archived from the original on March 1, 2021. Retrieved August 23, 2020.
  29. ^ Samuels, Brett (August 25, 2020). "Trump to nominate acting DHS Secretary Wolf for Senate confirmation". The Hill. Retrieved August 25, 2020.
  30. ^ Klein, Betsy; Sands, Geneva (August 25, 2020). "Trump to nominate acting Homeland Security secretary Chad Wolf to top role". CNN. Retrieved August 25, 2020.
  31. ^ Mazmanian, Adam (September 21, 2020). "Acting DHS head offers alternative succession path". FCW. Retrieved November 17, 2020.
  32. ^ Lambe, Jerry (November 14, 2020). "DHS Admits It Likely Made False Statement to Federal Court When Justifying Chad Wolf's Appointment". Law & Crime. Retrieved November 17, 2020.
  33. ^ Ly, Laura; LeBlanc, Paul. "Judge rules Chad Wolf likely unlawfully serving as Homeland Security secretary and temporarily blocks some asylum restrictions". CNN. Archived from the original on September 16, 2020. Retrieved September 16, 2020.
  34. ^ "Casa de Maryland, Inc. v. Wolf, Civil Action No. 8:20-cv-02118-PX (D.Md. 2020)" (PDF). Archived (PDF) from the original on September 16, 2020. Retrieved September 16, 2020.
  35. ^ Romero, Dennis (November 14, 2020). "Federal judge rules acting DHS head Chad Wolf unlawfully appointed, invalidates DACA suspension". NBC News. Retrieved November 14, 2020.
  36. ^ Shuham, Matt (November 17, 2020). "DHS Attempts Yet Another Feat Of Quantum Bureaucracy To Shore Up Chad Wolf's Legal Status". Talking Points Memo. Retrieved November 22, 2020.
  37. ^ Montoya-Galvez, Camilo (January 9, 2021). "Judge blocks wide-ranging asylum limits, finding DHS chief did not have authority to issue them". CBS News.
  38. ^ Jordan, Miriam (January 8, 2021). "A judge has blocked Trump's sweeping restrictions on asylum applications". New York Times.
  39. ^ "Pangea Legal Services v. U.S. Dept. of Homeland Security". Google Scholar. January 8, 2021.
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