Farewell (Perhaps?) Mr. Wolf. Hello Secretary Mayorkas!
Chad Wolf resigned as the Acting Secretary of the Department of Homeland Security (DHS) on January 11. However, Chad Wolf may never have lawfully been the Acting Secretary of DHS. It sounds confusing because it is confusing.
The outgoing President had a tendency to appoint acting heads of agencies, presumably to avoid the confirmation process, which normally includes hearings in front of Senate committees and tough questions from lawmakers. So appointing temporary agency heads was a workaround, but one that came with a significant downside as the basis for many of the president’s immigration policy changes being thrown out by judges.
The non-partisan U.S. Government Accountability Office (GAO) issued a report in August 2020 saying Wolf’s appointment was part of an invalid order of succession. The GAO issues decisions on agency compliance with the Vacancies Reform Act when requested by Congress. The GAO concluded that the last confirmed DHS Secretary was Kirstjen Nielsen, who resigned in April 2019. At that time, the Commissioner of Customs and Border Protection, Kevin McAllenan, became the Acting Secretary.
For fellow lawyers, or crime show aficionados, the August 2020 GAO report is a basic “fruit of the poisonous tree” analysis. The Homeland Security Act of 2002 (HSA) governs the Secretary’s designation of an order of succession. Upon the resignation of Secretary Kirstjen Nielsen, the express terms of the then existing designation required the Director of the Cybersecurity and Infrastructure Security Agency (CISA) to assume that title instead of the Commissioner of Customs and Border Protection (CBP) but for some reason the CISA director was not so designated. The CISA director at the time was Chris Krebs. (Side note: President Donald Trump fired Chris Krebs, just days after CISA called the recent presidential election the “most secure in American history.”)
The GAO report concludes that if Kevin McAleenan of CBP shouldn’t have been named head of DHS, but was, then the subsequent appointments of Under Secretary for Strategy, Policy, and Plans Chad Wolf and Principal Deputy Director of U.S. Citizenship and Immigration Services (USCIS) Ken Cuccinelli were also improper. At this point, the matter became a hot potato and the GAO referred the question as to who should be serving as the Acting Secretary and the Senior Official Performing the Duties of Deputy Secretary to the DHS Office of Inspector General (OIG) for its review. Well, the DHS Inspector General in September 2020 declined to investigate whether acting Homeland Security Secretary Chad Wolf and his deputy Ken Cuccinelli were serving in their roles lawfully, saying its efforts on the issue would be “pointless.” DHS Inspector General Joseph Cuffari stated that “Neither GAO nor DHS OIG can issue a binding determination on that issue, but a federal court can and probably will.”
Mr. Cuffari was right. A federal judge ruled in November 2020 that acting Department of Homeland Security Secretary Chad Wolf was unlawfully appointed, thus invalidating his suspension of the Deferred Action for Childhood Arrivals (DACA) program. In fact, multiple courts found his appointment unlawful. That certainly did not deter the President or Mr. Wolf. Mr. Wolf continued as Acting Secretary. And on January 7, when the Capitol was overrun in a violent riot, DHS issued a press statement that Mr. Wolf was in Bahrain signing a cooperation agreement with the Bahraini government. This brings to mind Nero fiddling while Rome burned.
And now he has resigned from a position for which he was never validly appointed. Why? Last week, he directly disobeyed an order from the Commander in Chief. In response to Mr. Wolf’s critique of the President after the riotous scene at the Capitol, the President apparently fired him, but, Mr. Wolf said Thursday that he would remain until President-elect Joe Biden’s inauguration to ensure an “orderly transition.”
The need for an orderly transition apparently didn’t matter much by Monday, January 11 however, when Mr. Wolf announced that he was leaving, stating that “Unfortunately, this action is warranted by recent events, including the ongoing and meritless court rulings regarding the validity of my authority as Acting Secretary.” So, now the federal courts matter?
Apparently, the August 2020 GAO opinion now matters as well. Mr. Wolf designated a new order of succession on January 11. This order designated the Administrator of FEMA as the Acting DHS Secretary. Mr. Wolf then returned to his duties as the Under Secretary for Strategy, Policy, and Plans. The Acting Secretary then delegated to Mr. Wolf the authority to ratify his past policy actions as Acting Secretary. And, of course, he ratified those actions! Perhaps Congress should request a new GAO report on this ratification? This does not seem to pass the smell test.
It’s been a mess. I am looking forward to stability at the helm of DHS, and imagine that countless others-–federal employees included-–agree. President-elect Biden has nominated Alejandro Mayorkas, someone with a history of public service. During the Obama administration, he served in the Department of Homeland Security, first as Director of U.S. Citizenship and Immigration Services (2009–2013) and then as Deputy Secretary (2013–2016). He is someone who knows the issues, and knows how to effect change in a rational and balanced way, to better our country and the lives of immigrants and their family members. I eagerly await the day Mr. Mayorkas will be validly confirmed as Secretary of DHS. It is past time that DHS has a lawfully appointed leader at the helm. Mr. Mayorkas, thank you for being willing to take on this behemoth agency with so many important responsibilities.