The top officials at the Department of Homeland Security don’t have any legal basis to be doing those jobs, a congressional watchdog said Friday, strengthening the foundation for legal challenges to the Trump officials’ decisions in office.
It was the latest push back against President Donald Trump’s reliance on “acting” officials doing jobs that would normally be subject to Senate confirmation. While acting officials usually only hold those roles in an interim capacity, DHS has been without a Senate-confirmed leader for longer than any other Cabinet post in American history.
Chad Wolf, the current acting DHS secretary, wasn’t actually confirmed by the Senate for that job. And his top deputy, Ken Cuccinelli, has never been confirmed by the Senate for anything.
On Friday, the Government Accountability Office, the legislative watchdog office, told inquiring lawmakers that Wolf and Cuccinelli didn’t actually have a legal basis to hold those jobs.
That’s because the previous acting DHS secretary, then-Customs and Border Protection Commissioner Kevin McAleenen, was himself installed without a legal basis — and therefore his decisions to appoint Wolf and Cuccinelli in their respective posts were invalid, GAO found.
“Mr. McAleenan assumed the title of Acting Secretary upon the resignation of Secretary Nielsen, but the express terms of the existing designation required another official to assume that title,” wrote Thomas H. Armstrong, the GAO’s general counsel.
“As such, Mr. McAleenan did not have the authority to amend the Secretary’s existing designation. Accordingly, Messrs. Wolf and Cuccinelli were named to their respective positions of Acting Secretary and Senior Official Performing the Duties of Deputy Secretary by reference to an invalid order of succession,” he added.
The GAO’s finding doesn’t have any immediate legal effect. The watchdog noted that it had not reviewed the legality of the actions taken by Wolf and Cuccinelli, and that it was referring the matter to the DHS inspector general.
But if a judge agreed with the GAO’s findings, it could have broad ramifications.
“The leadership structure at DHS is a house of cards,” Justin Vail, a policy advocate at the group Protect Democracy, told TPM.
Protect Democracy is just one of a number of groups to allege in lawsuits that Wolf and others aren’t legally holding their positions — and therefore that their decisions in office could be overturned.
In a July complaint over federal agents actions’ in Portland, Protect Democracy lawyers and others argued that Wolf had ordered the beefed up federal presence in the city “despite the fact that he has no legal authority to do so.”
“Defendant Wolf’s exercise of the functions and duties of the Office of the DHS Secretary violates the Constitution and other applicable federal laws,” the lawyers asserted.
It’s not a theoretical question: In March, a federal judge found that Cuccinelli had been appointed to a different position — acting director of U.S. Citizenship and Immigration Services — unlawfully, and therefore that his decisions about new asylum policies should be voided.
These days, Cuccinelli holds the purported role of “Senior Official Performing the Duties of the Deputy Secretary of Homeland Security.”
Mariko Hirose, litigation director at the International Refugee Assistance Project, said the GAO finding was “kind of big news an hour before we’re about to present this argument to Court.”
IRAP was presenting oral arguments Friday as part of a lawsuit opposing new government rules limiting asylum seekers’ ability to work legally in the United States.
In that suit, as in the Portland case, lawyers for asylum seekers noted that Wolf “is and has been serving as Acting Secretary in violation of both the Homeland Security Act (‘HSA’) and the Federal Vacancies Reform Act,” and therefore that he had no legal right to issue the new asylum rules.
But a veritable buffet of DHS policies could be legally vulnerable given Wolf’s questionable legal status — such as his late July memo to DHS officials instructing them to “reject all pending and future initial requests for DACA.”
“Clever litigants are going to want to go through the Federal Register and look for Wolf or McAleenan’s name on final actions,” said Anne Joseph O’Connell, a Stanford Law School professor who focuses on administrative law and the federal bureaucracy.
“You’ve already started to see some litigation on it,” she added. “But I think you’re going to see a lot more.”
“Because Wolf, Cuccinelli, and others at DHS are unlawfully serving in leadership positions, many of the actions they authorized are subject to legal challenge as invalid and void,” said Vail, of Protect Democracy. “Anyone suing DHS should consider including legal claims based on Wolf’s lack of legal authority.”
Reps. Bennie Thompson (D-MS) and Carolyn Maloney (D-NY), chairs of the House Homeland Security and Oversight committees, respectively, had requested the emergency GAO review of Wolf and Cuccinelli’s purported offices in November.
On Friday, they said in a statement that GAO’s opinion “paints a disturbing picture of the Trump Administration playing fast and loose by bypassing the Senate confirmation process to install ideologues.”
“In light of this decision, Mr. Wolf should immediately step down and return to his Senate-confirmed position as Under Secretary for Strategy, Policy, and Plans,” the chairs said. “The President should appoint an apolitical career official to run the Department temporarily and follow the Constitution by swiftly nominating a permanent Secretary.”
“As for Mr. Cuccinelli, a political pundit plucked by the President to serve in multiple senior roles at DHS for which he is woefully unqualified, he should immediately resign from the Federal government and retire his unprofessional official Twitter account,” they added.
DHS did not respond to TPM’s request for comment on the GAO’s finding. But a spokesperson told The Washington Post, “We wholeheartedly disagree with the GAO’s baseless report and plan to issue a formal response to this shortly.”
