Who’s on First at the Department of Homeland Security?

The Department of Homeland Security barely has any “official” top officials. It currently ranks last among the cabinet departments, with only about one-third of its top positions filled with Senate-confirmed leaders. And the secretary of homeland security position holds the unglamorous honor of having the longest cabinet vacancy in history: It’s been well over 500 days since the position had a Senate-confirmed occupant. President Trump finally submitted a nomination for secretary to the Senate late last week, the first since Kirstjen Nielsen departed in April 2019.

Succession planning stumbled from the start in the spring of 2019.

When President Trump pushed Nielsen out, he tweeted that he was promoting Customs and Border Protection Director Kevin McAleenan to acting secretary. But President Trump failed to realize that, in order to promote McAleenan, he also had to remove Undersecretary for Management Claire Grady. Under the Homeland Security Act, Grady was next in line for acting secretary. Both the Homeland Security Act and the Federal Vacancies Reform Act of 1998 (Vacancies Act) detail relevant rules for succession, but the Homeland Security Act almost certainly preempts the Vacancies Act if there is a confirmed undersecretary for management.

Nielsen had to delay her exit (and Grady quickly announced that she would also be leaving). In her final hours, Nielsen tried to get the paperwork in place for McAleenan to take over as acting secretary. Specifically, she wanted to change the existing order of succession, which would have had Christopher Krebs, the confirmed director of the Cybersecurity and Infrastructure Security Agency (CISA), taking over her position atop the department.

Nielsen received support from Department of Homeland Security General Counsel John Mitnick to install McAleenan as acting secretary. In a memorandum from Mitnick to Nielsen, Mitnick wrote: “Pursuant to your authority set forth in section 113 of title 6, United States Code, you have expressed your desire to designate certain officers of the Department of Homeland Security (DHS) in order of succession to serve as Acting Secretary. Your approval of the attached document will accomplish such designation.”

The attached document read: “By the authority vested in me as Secretary of Homeland Security, including the Homeland Security Act of 2002, 6 U.S.C. § 113(g)(2), I hereby designate the order of succession for the Secretary of Homeland Security as follows: Annex A of DHS Orders of Succession and Delegations of Authorities for Named Positions, Delegation No. 00106, is hereby amended by striking the text of such Annex in its entirety and inserting the following [which placed McAleenan next in line] in lieu thereof ….”

But, at that time, the provision that Nielsen’s document ordered to be changed (Annex A under Delegation 106) applied only when the secretary is “unavailable to act during a disaster or catastrophic emergency.” There was a separate succession order “[i]n case of the Secretary’s death, resignation, or inability to perform the functions of the Office.” And when reporters flagged the revised succession and delegation orders in November 2019, legal questions about McAleenan’s tenure began to arise, as observers noted that Nielsen had made a mistake. The provision she modified to install McAleenan likely didn’t apply: The secretary wasn’t incapacitated by a disaster or catastrophic emergency.

By the fall, President Trump and McAleenan were tiring of each other. Before he left the Department of Homeland Security in November, McAleenan revised the succession order—this time without limiting the changes to disasters and emergencies—to effectively make Chad Wolf the third acting secretary in three years as soon as the Senate confirmed him as undersecretary for strategy, policy, and plans. (Wolf had been serving as the acting undersecretary, but the succession order and Office of Legal Counsel decisions bar so-called double actings, when a person takes on a second acting title because of their acting status in another position.)

It’s all a mess, but until recently these details attracted little attention outside of some legal experts. But these succession issues have gained a more public profile after the Government Accountability Office (GAO), a watchdog that works for Congress, issued a legal opinion in August dinging key personnel moves as illegal. Late last Friday, a federal district court agreed with the GAO opinion and temporarilybarred certain work authorization rules from taking effect for members of two immigrant rights organizations.

I discuss below how the GAO ended up issuing its legal opinion, how litigants have used the succession mess to challenge Homeland Security’s actions (though not always following the GAO’s reasoning), and what might happen next (including whether Wolf, if confirmed, could ratify actions he took as acting secretary). I focus on the acting secretaries, skipping the related issue of the delegation of the deputy secretary’s nonexclusive functions to Ken Cuccinelli. (That delegation and Cuccinelli’s continued, unlawful use of the acting deputy secretary title would take an entire separate post.)

The GAO Opinion

Because succession and delegation orders are often not posted publicly on agency websites, no one realized Nielsen’s error for months. And commentators mistakenly assumed that McAleenan was properly serving under the Vacancies Act, not the Homeland Security Act. Putting constitutional concerns to the side, the Vacancies Act, if it applies, permits the president to sidestep the deputy secretary (who is the default interim official) to pick as acting secretary a Senate-confirmed official in any agency or a senior agency official who is paid at least at the GS-15 level and has spent at least 90 days in the agency in the year preceding the vacancy. (The GAO missed some of this precision in its opinion: Appendix 1 described this latter category as “President directs career official,” but as we saw when Matthew Whitaker was acting attorney general, it also includes political officials.) McAleenan fell in the first group the president could turn to. But the Vacancies Act has a 210-day time limit if there is no pending nomination. When that deadline approached with no nomination in sight, observers turned their attention to assessing whether McAleenan was serving under the Homeland Security Act instead.

In mid-November, congressional leaders of the House Committee on Homeland Security and the House Committee on Oversight and Reform wrote to the GAO’s comptroller general, citing “GAO’s statutory role in evaluating federal agency vacancies and FVRA issues” to request that the comptroller general “conduct an expedited review to resolve whether Mr. Wolf and Mr. Cuccinelli—who are now engaged in decision-making that impact the security of every American—are legally serving in the position.”

The GAO released its opinion on Aug. 14, finding that, under the Homeland Security Act, when Nielsen left, “the official who assumed the title of Acting Secretary had not been designated in the order of succession to serve upon the Secretary’s resignation.” In other words, Krebs was next in the relevant succession order, not McAleenan. The GAO continued: “Because the incorrect official assumed the title of Acting Secretary at that time, subsequent amendments to the order of succession made by that official were invalid and officials who assumed their positions under such amendments, including Chad Wolf and Kenneth Cuccinelli, were named by reference to an invalid order of succession.” Simply put, the GAO determined that neither Wolf nor Cuccinelli are serving legally. The GAO did not review “the legality of other actions taken by these officials” and referred “the matter to the Inspector General of DHS for review.”

Three days later, Chad Mizelle, a relatively junior attorney designated to perform the duties of the general counsel, responded to the GAO ruling for the department. (The general counsel position is one of the many long-standing vacant jobs at Homeland Security; the 210-day time limit for an acting official under the Vacancies Act has expired.)

The tone of the response is stunning. Here is just the conclusion: “The Report takes the reader on a march through a marsh. At each refusal to rely on key evidence, the morass thickens and the water deepens, as crucial questions lurking just underneath the surface begin to emerge: Is the ignored evidence and failure to afford DHS deference more than just a good faith disagreement? Does the timing of this Report suggest that something else is motivating this opinion? Does the GAO’s unfortunate recent history of issuing partisan and inaccurate reports perhaps explain what is going on? As the reader reaches the Report’s conclusion, he is left with the sinking and inescapable feeling that something is afoot in the swamp. The GAO should rescind its erroneous report immediately.”

On substance, drawing from both the title of Nielsen’s order (“Amending the Order of Succession in the Department of Homeland Security”) and other phrases from the order (and the accompanying memorandum from the general counsel) that refer to “the order of succession,” the Department of Homeland Security argued that Nielsen’s changes created a new succession order “for any and all vacancies in the position of the Secretary.” Even if her order was ambiguous, the department contended that its interpretation should get deference.

As further support for its interpretation, the department pointed to two of Nielsen’s subsequent actions: “a message to the entire agency when she stated that ‘Kevin McAleenan will now lead DHS as your Acting Secretary’” and “Nielsen personally execut[ing] her order of succession when she swore in then-Commissioner McAleenan as the Acting Secretary” (with a picture of the latter bizarrely included in the response). (The office of the U.S. attorney for the District of Maryland has provided a much more substantial, and less petulant, legal response in litigation.)

Despite the agency’s demand that GAO rescind its opinion, the GAO refused to do so: “DHS has not demonstrated that our prior decision contains errors of either fact or law, nor has DHS presented information not previously considered that warrants reversal or modification of our decision. Therefore, we decline to reverse or modify the decision.”

Litigation

In November 2019, once attention related to the acting secretaries of homeland security shifted from the Vacancies Act to the succession orders, not only did House Democrats get moving to question the acting service, but so did a number of plaintiffs challenging department actions. Some even filed claims before the GAO issued its August 2020 decision.

A wide range of federal suits have challenged the acting leaders. Among them, CASA de Maryland and others questioned the legitimacy of Wolf’s acting service in their lawsuit filed in the District of Maryland challenging Homeland Security’s new work authorization rules for asylum applicants. (This is the litigation that produced a decision on Friday by Judge Paula Xinis.) DACA recipients and would-be recipients added a claim about improper acting service maneuvers at the department to their complaint in the Eastern District of New York over DACA’s rescission and the department’s decisions in the aftermath of the Supreme Court’s June 2020 rejection of the rescission. (Santa Fe Dreamers Project and others just sued in the District Court for the District of Columbia over Wolf’s changes to DACA, focusing on his acting status under the relevant statutes and the Constitution.) Don’t Shoot Portland and others included a claim in their lawsuit in the District of D.C. over federal law enforcement actions during protests in Portland. Also in the District of D.C., the American Immigration Lawyers Association, filing on behalf of applicants for lawful permanent residence and others, included the issue in its challenge to the U.S. Citizenship and Immigration Services’s implementation of the Public Charge Rule. In the Northern District of California, eight immigrant rights organizations brought a leadership claim in their lawsuit attacking Homeland Security’s new rule increasing application fees for citizenship and asylum benefits, among other items. And, in the Southern District of Texas, Zapata County, Texas, and two border-adjacent landowners included an acting service claim in their suit over agency border wall actions.

With the GAO’s decision, more such claims will presumably be filed. These claims, however, often don’t completely track the GAO’s reasoning. I flag here some of the potential legal issues to be sorted out.

Did McAleenan’s Service Violate the Homeland Security Act?

The House committee chairs that sought a GAO ruling on this question and the GAO’s decision say McAleenan’s service did indeed violate the Homeland Security Act. Both the House chairs and the GAO contend that the critical document is the one Nielsen approved, which listed changes to the succession and delegation orders. And both the House leaders and the GAO note that the changes provided for in Nielsen’s document clearly applied only to vacancies resulting from disasters or emergencies, such that Krebs, and not McAleenan, was the proper acting secretary once Nielsen left. In response, the department claims that the changes—spelled out in various places, beyond just the document attached to the general counsel memorandum—clearly applied to all vacancies and that, even if the changes did not unambiguously place McAleenan next in line, courts should defer to the agency’s interpretation.

Given the document’s explicit reference to Annex A, which was limited to disasters and catastrophic emergencies, the changes did not clearly apply to all vacancies. But, given the multiple phrases about modifying “the succession order,” it’s harder to determine whether a court will find that the modifications unambiguously targeted only disasters and emergencies. (The judge in the CASA de Maryland suit just ruled that the changes clearly ruled out McAleenan.) While the government argues that courts should defer to its interpretation under Kisor v. Wilkie, the Supreme Court recently clarified that such deference applies only to limited agency interpretations of regulations. What is the regulation here? Does it include the general counsel’s memorandum? According to the court, the underlying “regulation” also has to be “genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation.”

Did McAleenan’s Service Violate the Vacancies Act?

The House Democrats and the GAO contend that the Vacancies Act cannot be used to temporarily staff the secretary of homeland security position in any situation. The government disagrees. (This issue of whether an agency-specific succession provision bars access to the Vacancies Act has arisen recently in relation to the heads of the Department of Justice, the Consumer Financial Protection Bureau, the Federal Housing Finance Agency and the Office of the Director of National Security.) The Homeland Security Act does seem to explicitly preempt the Vacancies Act when there is a confirmed deputy secretary or undersecretary for management. The government contests this in pending litigation. But if the Vacancies Act is not preempted, why push Grady out in April 2019? Does the separate provision about succession orders in the Homeland Security Act also bar the Vacancies Act’s use? It reads: “Notwithstanding [the Vacancies Act], the Secretary may designate such other officers of the Department in further order of succession to serve as Acting Secretary.” (The judge in the CASA de Maryland litigation indicated that the Vacancies Act would still be available.)

If, following Grady’s departure, President Trump could have turned to the Vacancies Act to name McAleenan, did he do so? Under the act, “the President (and only the President)” can name another Senate-confirmed official as acting secretary. Such a presidential action typically results in an official letter, invoking the Vacancies Act. Does the president’s tweet suffice? (The government has argued in court in other matters that the president’s tweets are not official statements.) Does it matter that the department reported to the GAO that McAleenan was serving under the Homeland Security Act (and not the Vacancies Act)?

In a challenge to the department’s so-called Public Charge Rule, the Northern District of California recently dismissed a claim against McAleenan’s acting service because it determined that McAleenan signed the rule within the 210-day period permitted under the Vacancies Act. But, important here, McAleenan did not change the succession and delegation orders within the 210-period, missing the cut-off by a few days.

Does Wolf’s Service Violate the Homeland Security Act?

If McAleenan’s service violated the Homeland Security Act (see above), his changes to the succession order that placed Wolf next in line are arguably invalid (but see remedies below). If McAleenan’s service did not violate the act, then Wolf may be properly serving under the agency’s succession provisions—assuming there are no time limits on his service from the Vacancies Act or the Appointments Clause.

Does Wolf’s Service Violate the Vacancies Act?

While the House Democrats and the GAO claim that the Vacancies Act does not apply to Wolf’s service, some litigants and commentators have argued otherwise. Specifically, they contend that the Vacancies Act’s 210-day time limit bars Wolf’s service under the Homeland Security Act. They posit that the “notwithstanding” phrasing in the Homeland Security Act’s succession order provision (“Notwithstanding chapter 33 of title 5, the Secretary may designate such other officers of the Department in further order of succession to serve as Acting Secretary.”) restricts who can serve as an acting official but does not alter how long they can serve. Under this view, the end of McAleenan’s service and all of Wolf’s service violate the Vacancies Act.

Such a reading runs up against decades of conflicting practice by Democratic and Republican administrations. There are many agency-specific succession provisions that do not contain time limits, though the Homeland Security provision postdates the Vacancies Act. Appointments Clause concerns described below may also shape the statutory analysis. Looking at the statutory language and considering the principle of constitutional avoidance, the judge in the CASA de Maryland litigation appeared open to the claim that the Vacancies Act’s time limits apply to the acting secretary of homeland security in a recent hearing, but rejected the argument when she ruled last Friday.

Did McAleenan’s or Wolf’s Service Violate the Appointments Clause?

Unaddressed by the committee chairs and the GAO, even if the Vacancies Act’s time limits do not apply here, the Appointments Clause may restrict how long there can be an acting secretary of homeland security. After all, the head of a cabinet department is a principal officer and, under the Constitution, must be appointed by the president and confirmed by the Senate (or recess appointed). Over a century ago, in United States v. Eaton, the Supreme Court held that an acting official temporarily serving in a principal office (because the officeholder had fallen ill) was an inferior officer, meaning that at least some acting secretaries of homeland security would pass constitutional muster as Congress has specified alternative selection plans under the Homeland Security Act (and, possibly, the Vacancies Act).

Litigants and some scholars contend that acting service in the secretary of homeland security’s job is no longer temporary and thus violates the Constitution. And Justice Clarence Thomas, writing alone, believed that 3.5 years of acting service in the National Labor Relations Board general counsel’s job went beyond the bounds of temporary. The Office of Legal Counsel also has previously admitted that an acting “may not properly serve indefinitely” and that an acting’s tenure should “not continue beyond a reasonable time.” McAleenan’s service did not last much longer than what the Vacancies Act permits, so it likely did not violate the Appointments Clause, assuming Senate-confirmed officials taking on the duties of a principal officer for a limited period is constitutional. But what about acting service 500 days after the principal office became vacant?

The vacancy’s duration may not be critical to the constitutional question. The Senate confirmed Wolf to his undersecretary role knowing that he would be the next acting secretary. His acting service is arguably germane to his confirmed role and thus possibly permitted, without time limits, under the Appointments Clause.

Remedies

The GAO’s opinion does not bind, or even qualify for deference from, the courts. But what happens to McAleenan’s or Wolf’s actions if a court finds that they were not properly named as acting secretary? There are several possibilities.

First, assuming the Homeland Security actions are not otherwise problematic (litigants have brought a host of other claims outside of acting service and the recent district court decision found likely deficiencies under the Administrative Procedure Act), it’s possible that nothing could happen. As the U.S. Court of Appeals for the First Circuit explained in upholding actions by the Financial Oversight and Management Board for Puerto Rico, which it held violated the Appointments Clause: “An ancient tool of equity, the de facto officer doctrine ‘confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment ... to office is deficient.’’’ It is not clear that the de facto officer doctrine would apply here. (Justice John Roberts raised the doctrine in the oral argument over DACA’s rescission, but the Supreme Court declined to consider the doctrine’s applicability in reversing the First Circuit’s constitutional decision above.) In addition, Homeland Security cannot rely on the doctrine to protect actions undertaken after serious questions about the legitimacy of the acting secretaries were raised. Did the doctrine’s protection, if it applies at all, end when the Democrats requested a GAO opinion, when the GAO issued its opinion, or at some other point? We don’t know.

Second, the Homeland Security actions could be struck down. Under the Vacancies Act, “[a]n action taken by any person who is [improperly serving] ... in the performance of any function or duty of a vacant office to which [the Act] appl[ies] shall have no force or effect.” In other words, in such cases, the de facto officer doctrine cannot save the agency, so if a court finds that the service of McAleenan or Wolf violates the Vacancies Act and determines that the challenged agency action qualifies, the action would be voided. In the recent litigation over whether Cuccinelli was permitted to serve as the acting director of U.S. Citizenship and Immigration Services, the plaintiffs and the government sparred over what actions fell under the act’s remedial scheme, with the department contending that only exclusive duties to the vacant position would count. Judge Randolph Moss of the District of D.C. (and head of the Office of Legal Counsel when the Vacancies Act was enacted) disagreed, but there aren’t really any instructive higher court decisions on this issue. It is more likely that a court will find that McAleenan’s or Wolf’s service violates the Homeland Security Act, which lacks a comparable remedial provision, than the Vacancies Act. In such a case, a court could still then proceed to annul the action as a violation of the Administrative Procedure Act. In the CASA de Maryland litigation, the government not only failed to raise the de facto officer doctrine, it also did “not contest that if the Court credits Plaintiffs’ argument [about the succession orders], the rules were promulgated without authority and must be set aside.”

Third, the actions could be struck down by a court but ratified, with due consideration, by a proper official if they do not violate other statutory or constitutional provisions. Under the Vacancies Act, certain qualifying actions by improper acting officials “may not be ratified.” But, if the Homeland Security Act applies instead, ratification is still on the table. One possibility, explicitly noted by the GAO, is that Peter Gaynor—who runs the Federal Emergency Management Agency and is now the proper acting secretary under the general succession order in place when Nielsen left—could make Wolf the acting secretary, assuming the 210-day limit does not apply. According to litigation filings, the government made exactly this move last week in order to install Wolf as acting secretary (again). Then, Wolf could reissue at least some of the contested decisions. As another option, if the Republican-controlled Senate confirms Wolf, he may be able to ratify some earlier decisions as needed.

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Although sometimes needed to fill important gaps in agency operations, acting officials and delegations of authority raise complex statutory and constitutional questions, as well as policy concerns. There has been no secretary of homeland security since April 2019 (and no deputy secretary since April 2018). Instead of just defending (even if successfully) against lawsuits, it would be far better to fill these (and other) jobs the traditional way—through presidential nomination and Senate confirmation.