The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.