ARGUMENT: Illegal tenureNo Light at the End of the Tunnel: Chad Wolf’s Unlawful Homeland Security Policies Are Still Unlawful

Published 29 January 2021

Since April 2019, DHS 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. Brian Frazelle writes that President Trump’s use of “acting” officers to advance his agenda started to backfire once it became clear that neither Chad Wolf nor his predecessor, Kevin 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.”

President Biden has quickly 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.

Brian Frazelle writes in Lawfare that 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.

He adds:

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.

Frazelle notes that since April 2019, DHS 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 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.

Frazeller writes that in response to these legal challenges, DHS 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.