GAO: Installation of DHS Acting Secretary and his Deputy Legally Invalid

Update:   On August 21, 2020,  the GAO denied a DHS request to reconsider its decision, and reaffirmed its holding that the appointments of Wolf and Cuccinelli are legally invalid.

On August 20, 2020, a lawsuit was filed challenging a final rule taking effect on October 2, 2020 increasing immigration filing fees.  The lawsuit  argues that the fee rule is invalid in part due to its issuance by the invalidly installed Acting Secretary Wolf.   Similar lawsuits are sure to follow.

On August 25, 2020, the administration announced it would nominate Chad Wolf to officially become the Secretary of the Department Homeland Security, which will require him to go through the Senate confirmation process, after serving in the Acting role since December 2019.

Original post:  On August 14, 2020, the nonpartisan U.S. Government Accountability Office (GAO) issued a decision finding that Department of Homeland Security (DHS) Acting Secretary Chad Wolf, and Senior Official Performing the Duties of DHS Deputy Secretary Kenneth Cuccinelli  were named to their positions under invalid orders of succession.

Neither of these officials has ever received Senate confirmation to occupy their positions.  The GAO is referring the matter to the Inspector General of DHS for further review.

Previously, in a legal challenge to directives issued by Ken Cuccinelli that substantially reduced due process for asylum seekers at the southern border, a federal district court ruled that Cuccinelli’s appointment was not legally valid, and consequently, neither were his directives.  The government appealed.

It is probably not a coincidence that the government agreed to dismiss its appeal of the federal court’s decision on the same day that the GAO issued its report.

The legal invalidity of Acting Secretary Wolf’s and Senior Official Performing the Duties of DHS Deputy Secretary Kenneth Cuccinelli’s roles could have far-reaching consequences.   It’s likely that new legal challenges will be filed to invalidate other actions taken by Wolf and Cuccinelli, such as the decision that USCIS would not accept new DACA applications, in defiance of  the Supreme Court’s DACA ruling, and the rejection and expulsion of asylum seekers at the southern border without any opportunity to request asylum as required by law, among many others.