Homeland Security leaders Wolf and Cuccinelli not legally appointed, watchdog says. Will it matter?

WASHINGTON —  A government watchdog released its findings Friday that the appointments of President Trump’s top Homeland Security officials were invalid, opening the administration up to legal challenges that could invalidate a number of immigration policies as well as undermine its central 2020 reelection strategy, former officials and legal experts say.

The Government Accountability Office said the Homeland Security Department did not follow federal law governing succession when making Chad Wolf the acting Homeland Security secretary and Ken Cuccinelli the senior official performing the duties of deputy secretary. The GAO’s decision doesn’t carry the force of law, and the department’s inspector general’s office will now review the legality of Wolf and Cuccinelli’s actions.

But with Wolf and Cuccinelli squarely at the center of the embattled department’s latest controversies, including deploying armed border officials in military-style fatigues to American cities and sidestepping Supreme Court orders on the Deferred Action for Childhood Arrivals program, Friday’s report bolsters arguments in a handful of lawsuits against the administration that its policies are illegal because their appointment was.

“Every bit of the last 18 months of action from DHS is now legally suspect,” said Paul Rosenzweig, a former deputy assistant secretary for policy in the Department of Homeland Security.

Michael Chertoff, the second-ever Homeland Security secretary, who served under President George W. Bush, said with likely litigation, “Any direction or order given by the top two officials — that’s going to become a real problem for the department upholding or defending those without authority.”

“It creates a further weakening of the department’s ability to function, with everybody holding their breath,” he said.

The GAO weighed the legality of the president’s recent appointments at the request of the Democratic chairs of the House Homeland Security and Oversight and Government Reform committees. But the problem actually stems from the April 2019 resignation of Homeland Security Secretary Kirstjen Nielsen. Her departure kicked off a purge of officials at the behest of immigration hard-liners in the White House, such as Trump’s close aide Stephen Miller.

The Homeland Security Department wouldn’t provide comment on the record and the White House did not respond to requests for comment.

The order of succession for positions at the third-largest federal department that require presidential nominations and Senate approval are governed by the Federal Vacancies Reform Act and Homeland Security Act. Before stepping down, Nielsen changed the order of succession so that Kevin McAleenan, then-commissioner of Customs and Border Protection, could take over. But according to the GAO, she did it incorrectly, amending the order for replacing the secretary in the case of disaster or emergency — not resignation.

McAleenan, too, amended the line of succession before resigning in November, but because he was improperly appointed, the appointment of Wolf was invalid as well, and so was Cuccinelli’s, the GAO concluded.

“Because the incorrect official assumed the title of Acting Secretary at that time,” the report says, referring to McAleenan, “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.”

In March, the U.S. District Court for the District of Columbia also ruled that Cuccinelli’s prior appointment as acting director of U.S. Citizenship and Immigration Services was unlawful.

Under Trump, who won the White House campaigning on promises to build a “big, beautiful wall” along the nearly 2,000-mile U.S.-Mexico border and remove some 10 million undocumented immigrants from the United States, the Homeland Security Department has been wracked by record vacancies and constantly changing directives.

While the inspector general and GAO have deemed these holes in leadership to have hurt the department, the president has said he prefers officials in acting capacities, believing it gives him more flexibility.

But now the consequences could be much further reaching for the president’s plans to double down on immigration and a fear-mongering “law and order” message in his reelection bid.

“In a rational world, President Trump would fix this by designating a new, legal acting secretary and have him or her ratify the actions of the predecessors,” Rosenzweig said. “Sadly, it is doubtful that President Trump will act rationally.”

Steve Vladeck of the University of Texas at Austin School of Law pointed to two ongoing cases as examples in which the administration could lose a much larger policy fight because of its personnel picks.

On one, a challenge to the administration’s latest memorandum to keep DACA on hold despite a Supreme Court ruling in June rejecting its attempt to rescind the program that protects young immigrants known as “Dreamers,” lawyers argue the memo is invalid because Wolf didn’t have the authority to issue it.

And on the second, a challenge to Homeland Security’s deployment of agents to Portland, Ore., lawyers argue Wolf didn’t have the authority to designate certain department personnel to take on domestic law enforcement roles.

“Presumably, the administration cares more about the policies than the people,” Vladeck said, but “if you spend the next six months fighting in court over whether Wolf and Cuccinelli were lawfully appointed, it might be too late to sort of rerun the traps and reissue the policies with the right person‘s name on them ... you’re basically playing roulette at this point.”

The administration, led by Miller, one of the most powerful figures in the White House, has indicated that it will be rolling out a number of new immigration-related regulations in the run-up to the election in November.

Given the single-minded focus on rushing through these immigration restrictions, Theresa Cardinal Brown, director of immigration and cross-border policy at the Bipartisan Policy Center, questioned whether Miller and other Trump officials behind the majority of the policies actually care whether the Homeland Security appointments were legal or not.

“They’re going to keep pushing it,” Cardinal Brown said. “We all are sort of aghast and agog because we’ve never seen government act like this before, at least in most of our lifetimes.”

In the meantime, the Homeland Security rank and file are left with more confusion and questions, said John Sandweg, who was acting director of Immigration and Customs Enforcement and general counsel at the department under President Obama.

“I can’t tell you how destabilizing it is when they’ve already lit a Dumpster fire at the department, the convoluted way they’ve picked their leadership,” Sandweg said. “It’s pouring a big bucket of grease on it.”