Administrative Law

The Even-More Headless Department of Homeland Security (Updated)

Even the Acting Secretary might not actually be an Acting Secretary.

|The Volokh Conspiracy |

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.

 

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  1. “The best [ineligible] people!”

    1. heh

  2. I think this shows the extent to which the swamp has sought to sabotage the President — Obama didn’t have to deal with this crap, and remember that one of the underlying causes of 9-11 was the perceived weakness of GW Bush because *he* wasn’t able to get his people confirmed.

    Personally, I’d like to see all US Senate pay (Senators and staffers) placed in escrow as of August 1st of the year of inauguration and until all the new POTUS people have been confirmed. That’d end this problem.

    And I don’t think the mistake Nielson made was accidental. Trump has been repeatedly been sabotaged by his own people.

    1. Law is political, and I am imagining the consequences of “the great clawback” — *all* of the entities who have received DHS grants having to return them (in cash) because DHS wasn’t being lawfully run. So sorry, a court is making me do it.

      That would be an incredibly effective cudgel for Trump to use…

      1. Love it when people like Ed present as a masterstroke something that is not only impossible, but which everyone who is not as ride-or-die Trump as them would see as a destructive tantrum.

        What if Trump punched Biden in the debates, and said ‘that’s for the treason, ya filthy animal?’ Can you say MAGA landslide?

        1. Another batch of lawlessness and incompetence that Trump fans ascribe to anything other than the Trump administration’s vivid inadequacies. The swamp, Democratic chicanery, the Niedermeyering (fragging), Supreme Court squishery, a shadowy cabal of enemies . . . never the corruption, the lack of qualifications and temperament, the shabby shortcuts, the shallow sycophancy or the garish ineptitude.

          Five more months. Then, the reality-based world tends to indicate, the reckoning begins.

          How much conservative participation in federal government should the mainstream accept next year? After the Supreme Court is enlarged, the assistance required from Republicans could be scant.

          1. [Automatic response to Sarcastr0 & Rev. Arthur L. Kirkland’s comments: *Yawn*]

            1. You can call it yawning if it makes you feel better . . . but the “opening wider” part should be very good practice for what is likely to be coming your way soon, Michael W. Towns.

            2. Michael, Do your automatic yawn mean you also subscribe to the idiotic and paranoid Ed speculations? Or do you yawn, while also–like the rest of us–ridicule pathetic efforts to explain away Trump’s uber-swampy appointments of the corrupt and/or incompetent?

        2. “What if Trump punched Biden in the debates, and said ‘that’s for the treason, ya filthy animal?’ Can you say MAGA landslide?”

          If he said “that’s for raping Tara Reade”, it’d get interesting.

          But Trump is a lot smarter than you think he is.

          1. 1. Trump is seldom coherent, speaks at the level of a grade-school child, and mangles facts & history to a humiliating degree. So his cultists criticized Biden as mentally challenged.

            2. Trump is hopelessly corrupt, from his earliest days in business through his presidency. So his cultists peddle a transparently false story of Biden malfeasance.

            3. Trump has left a lifelong slime trail of sexual harassment, sexual assault and adultery – along with an obvious contempt for women he doesn’t even try to disguise. So his cultists trumpet a story against Biden that didn’t withstand even brief scrutiny.

            Sensing a pattern here?

          2. My favorite part about the entire delusion above is Trump — credibly accused in assaults on some 26 women, so far — caring enough about the rape of any woman to punch someone for it.

            1. Trump’s defense to the Jean Carroll accusation was “she’s not my type” implying that she was too ugly to rape. This is the person they think has an edge on issues of sexual assault.

              1. This is the person they think has an edge on issues of sexual assault.

                Ah, so Biden doesn’t have to outrun the MeToo bear like everyone else–he just has to outrun Trump? I think that’s the first time I’ve seen the goalposts officially move on that one.

                1. No goalpost moving at all. I’m just pointing out that people who think that it is somehow to Trump’s advantage to discuss sexual assault are delusional given his history on the issue.

                2. Watching a bigot like Life of Brian try to help Trump with a misogyny-based argument is great fun.

                  Now tell us how Trump is better for black Americans, gay Americans, and immigrants, Life of Brian!

                  1. Black Americans? How about the first black woman on a major party ticket.

                    Gay Americans? Recognition that civil rights law protections protect gay and transgender peopel.

                    Immigrants? Free child care.

                    1. people.

    2. Amazing the lengths you are willing to go to in order to avoid stating the obvious: Trump is incapable of appointing qualified and experienced people because he is so politically repulsive that no people of that description are willing to kiss his ring.

      So he goes to loyalists, or the unscrupulous eager for a high-paying government job no matter who is the boss. And the result is pretty much what happened to the restaurant in Goodfellas when the gangsters took it over.

      The USPS is a case study that has thankfully become suddenly prominent.

      But of course it is always preferable to claim “deep state” sabotage isn’t it.

    3. Ridiculous as usual. All Trump’s fuck-ups are the fault of his enemies.

      More evidence that his fans are a cult.

    4. Nielsen was confirmed as secretary of homeland security on December 5, 2017. Following her appointment, Nielsen implemented the controversial Trump administration family separation policy. She resigned in April 2019.

      Also, Obama did have to put up with this crap. The NLRB case above is about his administration.

      Also, just waiving your hands and crying ‘Deep State! DEEEEEP STAAAAAAATE!’ is not going to hold up legally.

      Also, the President doesn’t get to put the Senate’s pay in escrow for obvious reasons.

      1. NLRB case I was thinking of was of course Noel Canning https://www.oyez.org/cases/2013/12-1281.

      2. Trump has had to put up with rather more of it however.

        One of the better statistics is the percentage of Trump appointees who were confirmed, compared to Obama.

        If you look at the numbers from 2018, Trump only had 57% of his nominees confirmed. This compares to Obama at the same time in his administration who had 67% of his nominees confirmed. Trump’s nominees are spending longer times in committee and before coming to a Senate vote. If you look at it as absolute numbers, Obama had 538 confirmed nominees at this point, and Trump only has 392….just 73% of Obama’s nominees.

        That’s despite no fillibuster. Generally what’s happening is EVERY candidate is not being allowed the typical unanimous consent process, but being held up. One of the new tactics Democrats are using is the “30 hour fake debate”. Basically, Senate rules allow 30 hours of additional debate for each nominee after the Senate votes on cloture to end debate if requested by the minority. So, Democrats are demanding it for EVERY NOMINEE.

        So, every single nominee requires 30 hours of floor time in the Senate, no matter how minor or uncontroversial. Just to slow walk things. (And you wonder why nothing gets done in the Senate). Thus, if the Senate did absolutely nothing else but confirm Trump nominees, it would take about 10-11 years.

        1. That’s not the Deep State, thing that Ed is ranting about.

          So as not to take anything more away from his amazing display of dim paranoia, I will reserve for another day my complete lack of sympathy for the GOP accusing the other side of unfair dilatory parliamentary tactics.

          1. “my complete lack of sympathy “…

            Of course not. It’s the “they take a finger, we take their hand” argument.

        2. As of today, Trump has failed to nominate anyone for 138 positions, mostly at the Assistant Secretary/Under Secretary levels, ambassadors or agency heads in Homeland Security, for example, across all Cabinet departments . So the confirmation percentages are deceiving. Obama probably had a higher approval rate because he had made more nominations.

          Source: today

        3. At least at the Cabinet level, Trump’s nominees have on average been confirmed considerably faster than Obama’s (or W’s for that matter):

          https://ballotpedia.org/Days_from_nomination_to_confirmation_for_Trump_administration_officials

          Despite this fact he hasn’t even bothered to nominate a Secretary of DHS.

          And a lot of the delays and low approval rate come from Republican resistance in addition to Democratic opposition, e.g., Grassley refusing to consider Trump’s nominees in response to Trump firing Inspector Generals.

    5. Dr. Ed 2 : Obama didn’t have to deal with this crap…..

      But of course he did. He tried to push the boundaries on recess appointments to get his nominees to the NLRB past an obstructionist Senate, was rebuked by the Supreme Court, and that ruling then put hundreds of NLRB decisions in legal limbo. Two points :

      (1) How did Ed forget this? Lord knows we don’t expect much from him substance-wise, but this didn’t happen that long ago. Even Ed should have seen how vacuous his argument was.

      (2) I seem to remember people like Ed reacting to Obama’s mischief with hysterical tears and rage. Come Trump’s turn and they just yawn – then blame the Democrats….

      1. I’m managing some AI research, and Ed acts a lot like the more primitive neural nets. You can get a general background state relatively easy but after that swift learning and retention in dynamic conditions are still nearly impossible to get into the system.
        So you can get quick nearly human reactions to a static defined background (e.g. Trump cannot fail, only be failed), but deep learning is much more difficult.

        1. I’ve sensed devolution in the entities know as Ed during their time-span posting here. It’s as if their mental processes are coarsening and the ability to input outside information is degraded over time. I haven’t actually graphed the phenomena, but rough estimates suggest a total dysfunctional freeze-up by (say) 03 November 2020

      2. It wasn’t the NLRB that I was upset about.

    6. remember that one of the underlying causes of 9-11 was the perceived weakness of GW Bush because *he* wasn’t able to get his people confirmed

      Why would we “remember” something that is a complete fabrication from the delusional mind of Dr. Ed?

    7. “I think this shows the extent to which the swamp has sought to sabotage the President — Obama didn’t have to deal with this crap.”
      ———–
      C’mon.

      I don’t see a Justice Garland on the SCT … so, yeah, Obama dealt with this “crap” (whatever that is) in a far more substantial way.

      And as for the “swamp” … whatever that’s supposed to mean …

      Trump’s people — Trump’s — screwed up their own effort to screw up the DHS succession process so Trump could put his loyalists in place *beyond the reach of the Senate* (as though, w/ the current GOP, that would matter).

      Not sure why you’re blaming anyone other than the incompetent Trump and his people?

    8. Personally, I’d like to see all US Senate pay (Senators and staffers) placed in escrow as of August 1st of the year of inauguration and until all the new POTUS people have been confirmed. That’d end this problem.

      1. Would that apply when the president hasn’t actually gotten around to nominating anyone for that position?

      2. Should it have applied while Judge Garland (RIP) awaited confirmation?

    9. Trump has failed to nominate many of his appointees, opting to go with the legally dubious “acting” title. Most of them would have been confirmed. It is his own fault and illegal.

  3. I am confused. Does the GAO advisory opinion memo have any legal effect whatsoever? My thought is that it does not.

    1. Lawfare blokes seem to think it does. But then again, anything that gets to twist the knife in the Trump Administration gets put on a pedestal these days.

      1. I think they’re wrong about the GAO having any actual authority to order anything. Unlike some of the reporting which indicated the GAO essentially struck down something.

        The main and I think exclusive role of the GAO is to issue reports to agency heads and Congressional Committees for them to take action on.

        Seems to me the President could straighten all of this out, at least going forward, by issuing a new Executive Order or nominating some of the people for the positions their in. The Democrats will have a show trial and the Senate will confirm them. The real downside for Trump is if the Democrats can be effective in their criticism of his actions.

        I’m sure there will be a lot of litigation about some of the details but a lot of recent actions have been as a result of the Covid Relief Bills passed by Congress and signed by the President and no one really wants to take all of that money back.

        Eventually the Usual Suspects will be angry about it and make all kinds of wild claims and nothing much will really happen.

        1. Why has Trump not used a sycophantic Senate to place legitimate nominees in the relevant positions?

          Other than the incompetence, I mean.

    2. The GAO are pretty apolitical wonky types, and as such would generally have pretty good persuasive authority within an admin that they need to cover their legal butts.

      OTOH, as the Onion notes, Trump Claims He Can Overrule Constitution With Executive Order Because Of Little-Known ‘No One Will Stop Me’ Loophole

      1. The looters and rioters in American cities are also using that “no one will stop me” loophole. Funny how that works…

        1. Those that riot and vandalize are getting arrested regularly, Jimmy. Do some research beyond reading Breitbart for once in your life.

          1. Give me a break. They might get “arrested” but the local prosecutors are not pressing charges. These people are clearly using the “no one will stop me” loophole. (Not such a ‘zinger’ when you realize that the left is getting away with almost literal murder is it…?)

            1. Your proof for this is…?

              1. Reality. It is happening right before your eyes right now. Take a gander.

                  1. When I said reality I didn’t mean read some more fake news….

                    1. So when you say “reality,” you mean like Hillary’s child prostitution ring, right?

  4. I thought all the violence in Portland was going to end when Trump pulled out his “secret police stormtroopers.” Well it did end, sort of. The media just stopped covering all the continued violence and property destruction there. Want to see the latest example? Check out the video of a driver being hunted down by a mob, assaulted, detained for police to arrive (the irony of it all), and then kicked in the back of the head brutally and enough that it probably resulted in serious injury. Nice stuff from the peaceful protesters the media tells us all about.

    1. Has the courthouse burned down without the stormtroopers there to ‘protect’ it?

      1. Congratulations you win the booby prize for linear thinking!

        1. You put up a strawman that ‘all’ violence has stopped in Portland. Well, that’s ridiculous.

          You then imply that the violence has continued at a substantially comparable level, providing a single headline I doubt you checked into.

          DMN’s question is a good one – it requires either that the level of violence is less, or that federal troops were not needed in the first place.

          Not very linear thinking from him, but quite motivated reasoning from you! Glad you find the time between your increasing invocations of right-wing gun violence if the left doesn’t shape up.

  5. You might want to check your fly because your bias is showing.

    First off they weren’t “troops.” They were law enforcement officers. Although I think there was a good case to put that National Guard there Trump did not. But I know “troops” has a much better fascist ring to it then just saying they were basically federal cops….

    Second, it is obvious that violence continues. With federal law enforcement efforts now removed the rioters and mob just went elsewhere. (They wanted the press nothing more.) Requiring that they now burn down the courthouse, just one focal point for their violence, ignores that the overall violence isn the city is still rampant.

    Third, what gun violence? No one advocated gun violence. I pointed out that gun sales are through the roof and that surveys show people buying those have never owned a gun before. I also pointed out that this is becoming a powder keg and that the left is generally flaming the flames around it. Maybe you inferred some things into those statements but all that does is further show your implicit bias, nothing more.

    1. As David French said today on Twitter, “Only Trump can save this nation from the chaos he’s not saving it from now.”

  6. “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”

    Imagine trying to critique the Trump Administration without pretending you could read their minds. Has it ever been done?

    1. Imagine an administration (either Democrat or Republican) wanting to put people in charge who support it. The horror of horrors!

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