Judge Rules Wolf Not DHS Secretary, So DACA Restrictions Invalid

Likely not going to make much difference in the long run, but DHS needs to get this sorted out

By Andrew R. Arthur on November 17, 2020

On Saturday, Judge Nicholas Garaufis of the U.S. District Court for the Eastern District of New York issued a Memorandum and Order (available behind a paywall), in which he invalidated Acting DHS Secretary Chad Wolf's July restrictions on the Deferred Action for Childhood Arrivals (DACA) program, on the grounds that Wolf lacks the authority to serve as Acting DHS Secretary (he does not believe that Wolf's predecessor, Kevin McAleenan, had authority to name Wolf), and therefore could not restrict DACA. It likely will make little difference in the long run, but the issues raised need to be sorted out quickly.

I analyzed Wolf's DACA restrictions in a July 30 post. Briefly, however, pending review of the program, Wolf rescinded prior DACA memos issued under the Trump administration (which themselves wound-down DACA), and directed DHS personnel to reject all pending and future initial requests for DACA. He also directed DHS to reject all pending and future applications for advance parole — absent exceptional circumstances — and shortened the period under which DACA benefits that have already been approved may be renewed from two years to one.

The court's memorandum and order goes into great detail about the order of succession for DHS secretary, which has been vacant and filled by acting secretaries since Kirstjen Nielsen resigned in April 2019. That has not been an efficient way to fill that position (and other vacant positions in the executive branch), as my colleague Mark Krikorian alluded to in October.

It appears that Judge Garaufis concludes that the de facto Acting DHS Secretary following Nielsen's departure was (and possibly still is) Christopher Krebs, the director of DHS's Cybersecurity and Infrastructure Security Agency (CISA), in accordance with an August decision by the Government Accountability Office (GAO) on the issue.

Long story short: The Vacancies Reform Act (VRA), 5 U.S.C. § 3345, provides a general order of executive branch succession, but DHS can set its own order of succession, through a 2016 amendment to the Homeland Security Act of 2002 (HSA). Under the HSA as amended at 6 U.S.C. § 113(g), the DHS under secretary for management (currently vacant) serves as the acting secretary if there is not an acting secretary or acting deputy secretary (which there is not — she resigned four days before Nielsen), and the secretary can designate order of succession.

That amendment was effective on December 23, 2016.

Two weeks before that amendment took effect, President Obama issued Executive Order (EO) 13753, setting a new order of succession for DHS, to take effect "during any period in which the Secretary has died, resigned, or otherwise become unable to perform the functions and duties of the office of Secretary". In order, it goes: deputy secretary; under secretary for management; FEMA administrator; undersecretary for national protection and programs; under secretary for science and technology; under secretary for intelligence and analysis; commissioner of U.S. Customs and Border Protection; and so on, ending with director of the Federal Law Enforcement Training Center.

Two days later, then-DHS Secretary Jeh Johnson put forth an order of succession and delegation. That order distinguished between the two different scenarios under the VRA — that is, an order of succession and an order of delegation. The former applies to death or resignation, the latter to a case of disaster or catastrophic emergency. The order of succession and delegation both appear to have followed the positions in order under EO 13753.

Nielsen attempted to change the order of succession before she left, but under the logic of both GAO and the court, her order only applied in delegation cases — that is, where the secretary could not serve because of a disaster or other catastrophic emergency — not where the secretary had resigned. There does not appear to be any dispute that she could have changed the succession order, just that she did not do so (or do so properly).

So, in essence the argument goes, Nielsen could not appoint McAleenan (then CBP commissioner, below the CISA director under EO 13753) to be acting DHS secretary when she resigned, so a subsequent succession order by McAleenan that left Wolf in charge (with acting USCIS Director Ken Cuccinelli as his acting DHS deputy secretary) was invalid.

DHS responded almost immediately to the GAO report, arguing that Nielsen had changed the order of succession and delegation. Notably, again, prior to the 2016 amendment to the HSA, only the president could alter the succession order at DHS, but that amendment removed that contingency, and gave that authority to the DHS secretary, which DHS contends Nielsen properly did.

In essence, DHS argues that the outgoing DHS secretary designates her successor, which Nielsen did by designating McAleenan, and McAleenan did in designating Wolf. There is no question that McAleenan changed the order of succession at DHS to the following: deputy secretary of Homeland Security (vacant); under secretary for management (vacant); commissioner of U.S. Customs and Border Protection (vacant); and under secretary for Strategy, Policy, and Plans (which Wolf occupied). So, if McAleenan's position was legitimate, so is Wolf's.

To try to clean all of this up, DHS had FEMA Administrator Pete Gaynor (who would have trumped Krebs in the pecking order in EO 13753, except that the FEMA administrator position was vacant when Nielsen resigned, and Gaynor was not confirmed until January) designated a new order of succession naming Wolf, and affirmed the actions Wolf had taken.

The court ignored that, because DHS has never sent a notification to Congress, required under 5 U.S.C. § 3349 (a), that Gaynor has never been named acting DHS secretary.

All of this might come down to a simple question of semantics — that is whether Nielsen changed the order of succession and delegation or just the order of delegation for DHS. It would appear that all of these issues could be avoided by DHS sending Congress Gaynor's name as acting secretary, and then having Gaynor ratify all of the actions that Wolf took and issue yet another order of succession naming Wolf, and then having DHS send Congress Wolf's name.

That would, however, likely cause additional litigation issues, not just for DACA, but for all of the other actions that Wolf took. It is unclear whether DHS is going to appeal Judge Garaufis's order to the Court of Appeals for the Second Circuit, but is likely to do so (at least in the alternative).

In any event, DHS needs to get this sorted out, and quickly. In the long run, however, presumptive president-elect Joe Biden has vowed to continue the DACA program, so all of this will likely be moot. Again, however, in order to resolve the issue of the other acts that Wolf has taken as acting DHS secretary, the question needs to be answered: Is Chad Wolf the DHS secretary and, if not, what is the effect of those other actions?