DHSFederal Judge: Chad Wolf Serving Unlawfully as Acting DHS Secretary

Published 16 September 2020

Judge Paula Xinis, a federal judge in Maryland, has ruled that Chad Wolf is likely unlawfully serving as acting secretary of the Department of Homeland Security. The judge also temporarily barred the Trump administration from enforcing new asylum restrictions on members of two immigration advocacy groups. The judge said that since it is likely Wolf is serving illegally as acting DHS secretary, then the asylum restriction orders he signed may have been “promulgated without authority” and “must be set aside.” Legal experts say that if we apply Judge Xinis’s interpretation of the 1998 Federal Vacancies Reform Act (FVRA) to other serving officials in the administration, there are definitely 15 who are occupying their positions illegally — and possibly 21 more, for a total of 36 officials with questionable legal authority to serve in their posts.

Judge Paula Xinis, a federal judge in Maryland, has ruled that Chad Wolf is likely unlawfully serving as acting secretary of the Department of Homeland Security. The judge also temporarily barred the Trump administration from enforcing new asylum restrictions on members of two immigration advocacy groups.

The judge said that since it is likely Wolf is serving illegally as acting DHS secretary, then the asylum restriction orders he signed may have been “promulgated without authority” and “must be set aside.”

Two legal services organizations challenged Wolf’s restrictive orders, and legal observers say that Wolf’s questionable legal status as acting DHS secretary may lead to challenges of many other orders he has signed since becoming acting secretary.

In a 69-page ruling issued on Friday, Judge Xinis wrote that the two immigration advocacy groups are “likely to demonstrate (former acting Homeland Security Secretary Kevin) McAleenan’s appointment was invalid under the agency’s applicable order of succession, and so he lacked the authority to amend the order of succession to ensure Wolf’s installation as Acting Secretary.”

Because Wolf is in his position illegally, Judge Xinis ruled Wolf did not have the authority to impose the asylum rules which are being challenged.

Government lawyers have not dispute that if Wolf is indeed illegally in his position, then he did not have the authority to promulgate and sign rules, and that these rules would likely be successfully challenged in court.

Judge Xinis explained that the questionable legality of Wolf’s position stems from actions by his predecessor, Kevin McAleenan. When former DHS Secretary Kirstjen Nielsen resigned last year, she designated McAleenan to be her replacement in an “acting” capacity. But McAleenan, according to DHS’ own “succession” document, was not supposed to be next in line for the job. Thus, when McAleenan himself resigned from a position he was in illegally, and named Wolf his successor — also on an “acting” secretary — he (McAleenan) could not have legally made that decision. Since McAleenan was in his position illegally, he did not have the authority to designate his replacement.

Judge Xinis’s ruling agrees with the Government Accountability Office’s (GAO) conclusion published last month.

Anne Joseph O’Connell, an authority at Stanford Law School on “acting” officials and administrative law, wrote in Lawfare Monday, “A wide range of federal suits have challenged the acting leaders.” 

As O’Connell told TPM last month, “Clever litigants are going to want to go through the Federal Register and look for Wolf or McAleenan’s name on final actions” and pursue lawsuits against those rules.

Both Wolf and Ken Cuccinelli, the head of USCIS, will likely stay in their positions while the Senate considers Wolf’s appointment to the DHS position on a permanent basis. President Trump sent Wolf’s appointment to Congress last month.

federal judge’s ruled in March that it was unlawful to appoint Cuccinelli to lead USCIA. The Trump administration is appealing the ruling.

Becca Damante writes in Just Security that if we apply Judge Xinis’s interpretation of the 1998 Federal Vacancies Reform Act (FVRA) to other serving officials in the administration, there are definitely 15 who are occupying their positions illegally — and possibly 21 more, for a total of 36 officials with questionable legal authority to serve in their posts.

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