No Light at the End of the Tunnel: Chad Wolf’s Unlawful Homeland Security Policies Are Still Unlawful

President Biden has swiftly reversed a number of the Trump administration’s policies through executive orders. While some of these orders reversed immigration-related policies such as the Muslim ban, many of the Trump administration’s initiatives targeted noncitizens through Department of Homeland Security rules that cannot be immediately undone. The ongoing litigation seeking to overturn those rules will continue to be vitally important. Earlier in January, yet another court (the fifth so far) ruled that former Acting Secretary of Homeland Security Kevin McAleenan never lawfully held that position, and therefore his hand-picked successor, Chad Wolf, also had no right to be acting secretary or establish new Homeland Security rules.

Shortly thereafter, in a last-ditch effort to save the measures that Wolf and McAleenan instituted while leading Homeland Security, the Trump administration attempted an end-run around these judicial decisions. Wolf ostensibly stepped down as the acting secretary, after which his putative replacement, Federal Emergency Management Agency (FEMA) Administrator Peter Gaynor, purported to vest Wolf with the authority to ratify his own prior actions—which Wolf proceeded to do. These convoluted maneuvers, however, lacked any legal significance and did not legitimize the past two years of Homeland Security policymaking.

(Disclosure: My organization, the Constitutional Accountability Center, has been litigating the issue of Wolf’s and McAleenan’s validity since last spring, both as co-counsel in several lawsuits against Homeland Security officials and as an amicus in many others.)

Since April 2019, the Department of Homeland Security has operated without a Senate-confirmed secretary, even as it adopted a series of radical policies meant to block immigrants and asylum-seekers from lawful refuge in the United States. President Trump’s use of “acting” officers to advance his xenophobic agenda started to backfire once it became clear that neither Wolf nor his predecessor, McAleenan, was entitled to be the department’s acting secretary. Every court to rule on the matter has agreed that their tenures violated the Homeland Security Act, one of the laws that governs vacancies in the secretary’s office.

In response to these legal challenges, Homeland Security tried to legitimize Wolf’s status in the fall of 2020 through some creative paperwork, but that effort failed to move the courts. So in January, with the sun setting on the Trump administration, the department tried one last bureaucratic tactic to validate Wolf’s and McAleenan’s actions. Wolf purported to designate FEMA Administrator Gaynor as the new acting secretary and to return to his underlying Homeland Security position. Gaynor then claimed to delegate certain powers of the secretary right back to Wolf—including the power to ratify department actions that were initially taken without proper authority. Wolf then declared that he had ratified all the actions he took as acting secretary, as well as many of the actions taken by McAleenan.

This latest gambit further complicates an already tangled administrative mess, but ultimately it amounts to nothing more than rearranging the deck chairs on the Titanic. Far from legitimizing any of the Trump administration’s actions, these moves underscore how little confidence the administration had in the legality of those actions, as well as the lengths to which it would go to avoid the requirements of the Constitution’s Appointments Clause. 

First, some background. The Federal Vacancies Reform Act (FVRA) sets the default rules for the temporary filling of offices that require Senate confirmation. It places careful limits on the use of acting officers in order to prevent the executive branch from circumventing the Senate’s advice-and-consent role. The Homeland Security Act incorporates the FVRA’s rules with regard to the office of secretary of homeland security, but it also modifies those rules to prevent unexpected gaps in the secretary’s office. Specifically, when the secretary’s office is vacant, 6 U.S.C. § 113 directs that the department’s second-ranking officer—or, if that position is also vacant, its third-ranking officer—must serve as acting secretary. And because there may be times when the department’s top three positions are all vacant, the Homeland Security Act permits the secretary to designate a “further order of succession” under which lower-level department officers may serve as acting secretary. It is under such an order, the Trump administration claimed, that Kevin McAleenan became acting secretary in 2019 when then-Secretary Kirstjen Nielsen resigned.

Unfortunately for the administration, the Homeland Security order that supposedly authorized McAleenan to be acting secretary did no such thing. (The documents surrounding McAleenan’s ascension were not publicly available until a congressional oversight letter revealed one of them in late 2019.) Under that order, which was signed by then-Secretary Nielsen, McAleenan would have been first in line to take over when the secretary was “unavailable to act during a disaster or catastrophic emergency.” But Homeland Security has a separate line of succession for all other vacancies in the secretary’s office, including those following a secretary’s resignation. And under that separate, non-emergency line of succession, McAleenan was not entitled to become acting secretary after Nielsen’s resignation. (The first person in line was Christopher Krebs, director of the Cybersecurity and Infrastructure Security Agency.) McAleenan took over anyway, and before he resigned from government later that year, he purported to establish a new order of succession to make Chad Wolf his replacement. 

As noted, five courts have ruled that McAleenan never validly became acting secretary, meaning that he had no power to install Wolf as his successor. A sixth court has ruled that even a valid acting secretary cannot designate an order of succession under 6 U.S.C. § 113, as McAleenan tried to do. No court has upheld McAleenan’s or Wolf’s legitimacy. 

When Wolf abruptly announced that he was stepping down as acting secretary in January, he Become a supporter of IT Security News and help us remove the ads.