Published on: Friday, August 14, 2020

The Government Accountability Office says that the acting leaders of the Department of Homeland Security – acting Homeland Security Secretary Chad Wolf and his aide Ken Cuccinelli, who have been serving in their roles since November 2019 without Senate confirmation, were not appointed through a valid process, article available here. The GAO report came at the request of the heads of the House Homeland Security Committee and the Oversight and Government Reform Committee.

"Messrs. Wolf and Cuccinelli were named to their respective positions of Acting Secretary and Senior Official Performing the Duties of Deputy Secretary by reference to an invalid order of succession," the GAO said. It declined to draw conclusions about the consequences of their service, saying it had not been asked.

The succession problem arose in the wake of the resignation of Homeland Security Secretary Kirstjen Nielsen in April 2019. Kevin McAleenan, the commissioner of Customs and Border Protection, became acting secretary. He held the job until November, when he resigned and Wolf rose to become acting secretary. The GAO said the Homeland Security Act established its own succession rules for department positions requiring Senate approval.

Under the leadership of Wolf and Cuccinelli, the Department of Homeland Security has attracted intense scrutiny for such actions as deploying federal agents to protests in Portland, Ore., over the opposition of local and state leaders. And new restrictions on asylum-seekers and Deferred Action for Childhood Arrivals, or DACA, applicants have prompted lawsuits from immigration advocates. Some of those lawsuits seek to throw out DHS actions on the grounds that the department's leadership is not legitimately in power. And now a government body has endorsed that legal argument, which, O'Connell said, "could be very persuasive in the courts."

Although the GAO's opinion is not binding on DHS or on the court system, the opinion could prompt judges to dismiss some DHS actions as illegal, and it also suggests it is not clear who has the legal authority to run the department.