The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
None of the top officials at the Department of Homeland Security have been Senate-confirmed for their positions. As I noted here, neither Acting Secretary Chad Wolf nor the any of the department's deputy or assistant secretaries have been Senate-confirmed for the positions they are occupying. Some of them, such as Ken Cuccinelli (who has been pretending to be the Acting Deputy Secretary) are not even eligible to be the "acting" officials. At present, DHS has been without a Senate-confirmed Secretary for a longer period than any cabinet department ever.
Now it turns out that those purportedly serving as acting officials, including "Acting Secretary" Chad Wolf, may not even be Actings. As detailed in a Government Accountability Office (GAO) opinion letter issued Friday, neither Wolf nor his predecessor, Kevin McAleenan, were properly made "Acting Secretary" because of errors in the way the DHS order of succession was altered (i.e. manipulated) in an effort to ensure DHS would be run by those most loyal to the President. The Administration thought it was being clever, but it was actually being too cute for its own good.
Paul Rosenzweig summarizes the GAO's conclusions at Lawfareblog:
DHS actually has TWO different lines of succession: One that applies when the Secretary is not available because of death or resignation and another that applies when the Secretary is unavailable due to disaster or catastrophic emergency. For much of its history, though legally distinct (under something known as HSA Delegation 00106) the two lines of succession were substantively identical—that is the same order was listed for both types of succession.
Here's the problem: In February 2019, before she quit, when Secretary Nielsen changed the order of succession (under HSA Delegation 00106) she only changed the line of succession for disaster or catastrophic emergency. The memorandum she signed left unchanged the order or succession in case of resignation. It's almost certain that she meant to change both, but the fact of the matter is that she didn't—and that left the pre-existing order of succession in place.
And that pre-existing order, which was set by Executive Order 13753, set the succession as going (after the deputy and the undersecretary for management) first to the administrator for the Federal Emergency Management Agency (FEMA) and then to the director of the Cybersecurity and Infrastructure Security Agency (CISA). And since in April 2019 when Nielsen resigned the FEMA position was also vacant, that means that under law the true acting secretary at the time was Chris Krebs, the director of CISA.
Or so the GAO concluded.
If the GAO is correct (and I believe it is), this would mean that Wolf has not been lawfully exercising the authority of DHS Secretary, making all the regulatory changes and other assertions of DHS authority on his watch are legally vulnerable. Perhaps coincidentally, the Trump Administration dropped its appeal of district court decision that Cuccinelli was illegally appointed as Acting Director of U.S. Citizenship and Immigration Services.
The GAO opinion places a further cloud over DHS, and its legal authority. Indeed, I expect appointments-based claims to be added to many pending suits against DHS actions.
Would the courts be willing to invalidate months-worth of DHS actions based upon these problems? I think so. The Supreme Court had little problem invalidating dozens of National Labor Relations Board actions after concluding the NLRB had lacked a lawful quorum. It is possible the various actions taken by DHS under Wolf could be ratified, but that would require getting someone into the Secretary's office with the legal authority to exercise the power of the office, and that will be easier said than done, particularly if the Administration refuses to actually nominate someone for the position.
UPDATE: DHS has issued a response from Chad Mizelle, the Senior Official Performing the Duties of the General Counsel of DHS, here.