The Senate Should Ask Chad Wolf About His Illegal Appointment

Acting Secretary of Homeland Security Chad Wolf will testify before the Senate Homeland Security and Governmental Affairs Committee on Aug. 6 regarding the deployment of federal officers to Portland, Oregon. While there are many critical questions to ask about the specter of federal officers occupying an American city, senators should not lose sight of an issue lurking in the background—the fact that Wolf’s tenure as acting secretary violates the law.

The nightly clashes with protesters in Portland seem to have abated for the moment following the withdrawal of federal officers. But the fact that the clashes took place is all the more disturbing because officers were arguably taking orders from illegitimate superiors. Wolf’s tenure—and that of several of the other highest-ranking officials within the Department of Homeland Security (DHS), such as Ken Cuccinelli, whose laughable title is “Senior Official Performing the Duties of the Deputy Secretary of Homeland Security and Senior Official Performing the Duties of the Director of U.S. Citizenship and Immigration Services”—is not authorized by the federal statutes that govern the use of acting officials. Therefore, Wolf’s service in an “acting” capacity violates the Constitution’s Appointments Clause, which requires that high-ranking government officials serve in their positions only with the approval of the Senate.

Wolf’s unlawful service is far from an arcane constitutional question. This scenario—high-ranking officials wielding the immense power of the U.S. government without being subject to the advice and consent of the Senate—is exactly what the Founders sought to avoid when they included the Appointments Clause in the Constitution.

As an agency, DHS has been particularly willing to advance President Trump’s interests and disregard the law in numerous circumstances. This may be attributable to a complicated mix of factors, but there is little doubt that the lack of permanent leadership—individuals confirmed by the Senate—and the installation of Trump loyalists in key positions throughout the agency plays an important role. At the very least, the president’s refusal to nominate anyone for high-ranking positions within DHS deprives the Senate of important opportunities—through the scrutiny of confirmation hearings—to ensure that nominees are competent to serve in leadership roles in a critical government agency, conduct oversight and otherwise act as a check on the agency’s worst impulses.

The Senate has such an opportunity tomorrow and should use it to press Wolf not only on the events that transpired in Portland and his overall fitness for the critical role in which he now serves, but also on the legal validity of his position. Below, we suggest some possible questions.

Before getting to those questions, though, it is important to understand the legal context in more detail. The fact that Wolf’s tenure violates the law and the Constitution exposes many DHS actions to legal challenge. This includes the government’s conduct in Portland and—to point to another recent and high-profile example—DHS’s recent refusal to fully restore the Deferred Action for Childhood Arrivals (DACA) program, which is memorialized in a policy signed by Wolf. Indeed, recent lawsuits have raised such claims, and more are likely to follow. (Full disclosure: Our organization, Protect Democracy—along with lawyers from Debevoise & Plimpton and Perkins Coie—represents several protesters and organizations in a lawsuit against the federal government for its actions in Portland, which includes legal claims regarding Wolf’s position as acting secretary. Protect Democracy has brought similar challenges regarding other DHS officials.)

Legal Context

To the Framers of the Constitution, the king’s appointment power was “the most insidious and powerful weapon of eighteenth century despotism,” one that the king used to appoint “‘miniature infinitesimal Deities’” to spread the “weeds of tyranny” across the colonies. The Framers feared that if they misallocated the appointment power, the Constitution would fail, even if it were “in all other respects the best in the world.” To avoid the British system’s flaws, they decided not to give the president—in the words of Alexander Hamilton in Federalist Paper No. 76—the “sole disposition of offices,” which might result in high-ranking officials who had “no other merit than that of ... possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”

Instead, the Framers drafted a Constitution that required the Senate’s “Advice and Consent” for the appointment of “Officers of the United States.” The Appointments Clause distinguishes between two types of officers: principal officers, who can serve only with the Senate’s advice and consent, and “inferior Officers,” who are subject to the same advice and consent requirement unless Congress “by law vest[s] the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” In other words, Congress can decide whether inferior officers will be appointed by someone other than the president and whether they need the Senate’s advice and consent; but principal officers must receive the Senate’s advice and consent.

Recognizing that Senate confirmation can take time and that the government must continue to function, Congress has enacted statutes to allow for vacant offices that require the Senate’s advice and consent (sometimes referred to as “PAS positions” or “PAS offices,” an odd acronym for “presidential appointment with Senate confirmation”) to be filled temporarily by acting officials. As most relevant to the current discussion, DHS’s organic statute explicitly requires the secretary of homeland security to be nominated by the president and confirmed by the Senate (as required by the Appointments Clause) but also includes provisions that govern the order of succession for the position of acting secretary of homeland security when the office of the secretary is vacant.

Another statute, the Federal Vacancies Reform Act (FVRA), is “the exclusive means for temporarily authorizing an acting official to perform the functions and duties of” a vacant PAS office unless “a statutory provision expressly ... designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity,” or expressly authorizes another official to make that designation. The FVRA limits the time during which an office may be filled by an acting official to 210 days (with certain exceptions not relevant here).

It should seem obvious at this point that the law governing vacancies is notoriously complex and convoluted. But it can be boiled down to four simple propositions as applied to Wolf: First, Wolf is not the acting secretary of homeland security under the DHS succession statute. Second, the FVRA does not control the order of succession when the office of the secretary is vacant; but even if it did, Wolf would not be the acting secretary because the applicable time limit has expired. Third, because Wolf is not the lawful acting secretary under either statute, his attempt to exercise the power of that office violates the Appointments Clause. And fourth, because Wolf is not the lawful acting secretary, many of his actions are null and void.

The DHS Succession Statute

Under the relevant provisions of the succession statute, vacancies in the office of the secretary of homeland security are to be filled by the deputy secretary of homeland security and then, if that office is also vacant, by the under secretary for management. Where all of those offices are vacant, the statute provides for a secretary-established order of succession.

In April 2019, Secretary Kirstjen Nielsen—the most recent Senate-confirmed secretary of homeland security—tried to amend the existing succession order (see Enclosure B to the linked letter to the comptroller general from the House Committee on Homeland Security, which in turn refers to Executive Order 13753 for a hierarchy for DHS succession) right before she resigned, in order to make Customs and Border Protection Commissioner Kevin McAleenan the next in line to be the acting secretary. However, she amended only section II.B, the provision of the succession order that applies to situations where the secretary is incapacitated due to “a disaster or catastrophic emergency.” Section II.A, the portion of the succession order that applies to “the Secretary’s death, resignation, or inability to perform the functions of the Office” (emphasis added)—the section that applied to Nielsen’s circumstances—remained unchanged.

When Nielsen resigned, therefore, Executive Order 13753 still governed the order of succession. But upon her resignation, McAleenan assumed the position of acting secretary, despite the fact that two other Senate-confirmed individuals were ahead of him to succeed to that office. Then, on Nov. 8, 2019, McAleenan issued a directive (see Enclosure A) attempting to amend the order of succession to elevate the under secretary for strategy, policy, and plans to be fourth in line to lead the agency. When McAleenan resigned on Nov. 13, 2019, Wolf—who had been confirmed to the relevant under secretary position on that same day—purported to become acting secretary. But Wolf’s purported authority to serve in that position rests on McAleenan’s invalid change to the succession order—invalid because McAleenan himself was not the lawful acting secretary when he issued the order.

In a very recent court filing in Casa de Maryland v. Wolf, a pending case challenging the legality of Wolf’s tenure as acting secretary, the government for the first time addressed the flaws in the succession order. In short, the government admits that Nielsen’s amendment to the succession order did not in fact change the order of succession in situations where the vacancy in the office of the secretary arises due to a resignation, but urges the court to rely on its representation about what Nielsen meant to do, rather than what she actually did. (In making this argument, the government relies on a memorandum from the DHS general counsel—later signed by Nielsen—in which the entire “Discussion” section—the bulk of the memo—is redacted.) But it is a fundamental principle of legal interpretation that courts interpret and enforce the law as written, without reference to what the drafters might have intended (unless there is some ambiguity to be resolved, which there is not here).

The FVRA

As discussed previously, the DHS succession statute is not the only potentially relevant law. In most cases, the FVRA governs the president’s abilities to fill vacancies in PAS positions. However, Wolf’s service as acting secretary violates the statute because the relevant time limit on the tenure of an acting official has long expired.

Based on its recent legal filing in Casa de Maryland, the government does not appear to dispute that the DHS succession statute—and not the FVRA—governs the order of succession when the office of the secretary is vacant. The government is correct on that point, as the FVRA gives way to a more specific agency succession statute. However, the government takes the argument a step further and contends that the FVRA is entirely irrelevant to Wolf’s tenure. That is incorrect. While the DHS succession statute displaces the FVRA in some respects—in particular, in determining the line of succession when the office of the secretary is vacant—it also incorporates the FVRA in other respects, including the FVRA’s time limits (as explained in far more detail in an amicus brief filed on Aug. 3 by the Constitutional Accountability Center). That makes sense as a practical matter. If the DHS succession statute did not incorporate the FVRA’s time limits, as the government contends, DHS would be able to unilaterally pick anyone to act as secretary indefinitely simply by properly amending the succession order. That is not a result that Congress would have intended. And, as explained below, it would present significant constitutional problems.

In enacting the FVRA, Congress sought to provide the president with some flexibility to temporarily fill vacancies while also ensuring that the statute would not allow the president to disregard entirely the Senate’s advice-and-consent role. To strike that balance, the FVRA (and, by extension, the DHS succession statute) allows acting officers to serve for no more than 210 days (with certain limited exceptions not relevant here). But McAleenan sought to amend the DHS succession order on the 214th day of his purported tenure as acting secretary. And because the 210-day clock does not reset when a new acting secretary assumes office, Wolf cannot serve—and can never have served—as acting secretary, because the clock ran out before his time in that role even began.

The Appointments Clause

The Appointments Clause requires Senate confirmation for those who serve as an officer of the United States. While Congress can provide for alternative mechanisms for the appointment of inferior officers, there is no such exception for principal officers. This creates two problems for Wolf.

First, Wolf is an officer of the United States. Even if he is serving as an inferior officer—more on that in a moment—his tenure in the acting secretary position violates the Appointments Clause because he does not satisfy the statutory conditions established by Congress.

But there is an even more fundamental problem with Wolf’s service as acting secretary. For reasons articulated by Justice Clarence Thomas in a concurring opinion in National Labor Relations Board v. Southwest General, Wolf’s tenure might be unlawful even if his appointment satisfied the DHS succession statute or the FVRA. In Thomas’s words, “[a]ppointing principal officers under the FVRA”—or, by the same logic, under an agency succession statute—“raises grave constitutional concerns because the Appointments Clause forbids the President to appoint principal officers without the advice and consent of the Senate.” One might get around this constitutional problem if the fact that Wolf is acting secretary—and thus purportedly will be exercising those powers on a temporary basis—somehow renders him an inferior officer rather than a principal officer. But that would seem to be inconsistent with the Supreme Court’s holdings in Morrison v. Olson and Edmond v. United States, where the court has described tenure in office as only one factor—and perhaps not even an important one—in determining whether an officer is principal or inferior.

In a case decided more than 120 years ago, the Supreme Court did suggest that it might be permissible to fill the vacant office of a principal officer without Senate confirmation under “special and temporary conditions.” But, as Thomas explained in a footnote in his concurring opinion in Southwest General, Wolf is not saved by this exception. No special or exigent circumstances accompanied Wolf’s elevation to acting secretary. And his service is far from temporary. There has been no Senate-confirmed secretary of homeland security for nearly 500 days, and in the absence of any nominee, there is no end in sight to the acting secretary’s time in the role. Even if there are situations in which someone not confirmed for the job might exercise the power of a principal officer without running afoul of the Constitution, this is not such a case.

The Remedy

If, as explained above, Wolf has no valid claim to the position of acting secretary, the actions he takes while purporting to exercise the authority of that position are void. The FVRA provides that an action taken by someone who is serving in violation of the statute “shall have no force or effect.” But the result would be the same even in a context where the FVRA is not the operative statute. As Judge Randolph Moss recently held in a case involving a successful challenge to the appointment of Cuccinelli to lead the U.S. Citizenship and Immigration Services, agency action taken by an officer who is not lawfully serving in that position must be set aside under the Administrative Procedure Act.

Finally, the serious constitutional defect presented by Wolf’s service calls for an equally serious remedy. The Supreme Court has described the Appointments Clause as “among the significant structural safeguards of the constitutional scheme” and has emphasized that a violation of the clause should not be treated as a mere breach of “etiquette or protocol.” Therefore, as the court held in Ryder v. United States, “one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred.”

What the Senate Should Ask

It is critical that the Senate take the opportunity to get more answers regarding Wolf’s legal authority to act as secretary. Not only do these questions go to Wolf’s competence to run DHS and the validity of his actions, but the hearing is also a forum to raise broader questions about President Trump’s preference for acting officials and total disregard of the Senate’s constitutional role in confirming high-ranking officials. As the president said in one interview: “I like acting [sic] because I can move so quickly. It gives me more flexibility.”

Senators should consider asking Wolf some or all of the following questions:

● Please explain the source of your legal authority to exercise the functions and duties of the office of the secretary of homeland security. Does it rely on the DHS succession statute (6 U.S.C. § 113), the Federal Vacancies Reform Act, or both?

● In a recent court filing, the Department of Justice has claimed that you can serve in the position of acting secretary indefinitely without ever being confirmed by the Senate. Is that your view?

○ How do you reconcile that view with the Appointments Clause of the Constitution, which requires that principal officers of the United States can only serve with the advice and consent of the Senate?

○ Do you agree that the individual running the Department of Homeland Security is a principal officer?

● In defending your tenure as acting secretary, the government has relied on a memorandum from then-General Counsel John Mitnick, which was later signed by then-Secretary Nielsen. However, the entire “Discussion” section of that memorandum has been redacted. Can you shed light on what has been redacted and provide us with an unredacted copy of the memorandum?

● Why have you not been nominated to serve as the secretary and come before the Senate for confirmation?

○ Has the president or anyone else in the White House expressed to you a preference for you to remain as acting secretary rather than nominating someone to serve as a Senate-confirmed secretary?

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The country is now coming to appreciate the real-world cost that comes when its most critical agencies are led by individuals whose loyalty lies with the president rather than with the country and the Constitution. Ultimately, the responsibility lies with Congress to amend the FVRA and other statutes to make it harder for future presidents to abuse the authority to temporarily fill vacancies as this president has.

Disclosure: The authors work for Protect Democracy, which has represented Lawfare editors Benjamin Wittes, Jack Goldsmith, Scott Anderson and Susan Hennessey on a number of separate matters.