Published by The Lawfare Institute
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President Biden has swiftly reversed a number of the Trump administration’s policies through executive orders. While some of these orders reversed immigration-related policies such as the Muslim ban, many of the Trump administration’s initiatives targeted noncitizens through Department of Homeland Security rules that cannot be immediately undone. The ongoing litigation seeking to overturn those rules will continue to be vitally important. Earlier in January, yet another court (the fifth so far) ruled that former Acting Secretary of Homeland Security Kevin McAleenan never lawfully held that position, and therefore his hand-picked successor, Chad Wolf, also had no right to be acting secretary or establish new Homeland Security rules.
Shortly thereafter, in a last-ditch effort to save the measures that Wolf and McAleenan instituted while leading Homeland Security, the Trump administration attempted an end-run around these judicial decisions. Wolf ostensibly stepped down as the acting secretary, after which his putative replacement, Federal Emergency Management Agency (FEMA) Administrator Peter Gaynor, purported to vest Wolf with the authority to ratify his own prior actions—which Wolf proceeded to do. These convoluted maneuvers, however, lacked any legal significance and did not legitimize the past two years of Homeland Security policymaking.
(Disclosure: My organization, the Constitutional Accountability Center, has been litigating the issue of Wolf’s and McAleenan’s validity since last spring, both as co-counsel in several lawsuits against Homeland Security officials and as an amicus in many others.)
Since April 2019, the Department of Homeland Security has operated without a Senate-confirmed secretary, even as it adopted a series of radical policies meant to block immigrants and asylum-seekers from lawful refuge in the United States. President Trump’s use of “acting” officers to advance his xenophobic agenda started to backfire once it became clear that neither Wolf nor his predecessor, McAleenan, was entitled to be the department’s acting secretary. Every court to rule on the matter has agreed that their tenures violated the Homeland Security Act, one of the laws that governs vacancies in the secretary’s office.
In response to these legal challenges, Homeland Security tried to legitimize Wolf’s status in the fall of 2020 through some creative paperwork, but that effort failed to move the courts. So in January, with the sun setting on the Trump administration, the department tried one last bureaucratic tactic to validate Wolf’s and McAleenan’s actions. Wolf purported to designate FEMA Administrator Gaynor as the new acting secretary and to return to his underlying Homeland Security position. Gaynor then claimed to delegate certain powers of the secretary right back to Wolf—including the power to ratify department actions that were initially taken without proper authority. Wolf then declared that he had ratified all the actions he took as acting secretary, as well as many of the actions taken by McAleenan.
This latest gambit further complicates an already tangled administrative mess, but ultimately it amounts to nothing more than rearranging the deck chairs on the Titanic. Far from legitimizing any of the Trump administration’s actions, these moves underscore how little confidence the administration had in the legality of those actions, as well as the lengths to which it would go to avoid the requirements of the Constitution’s Appointments Clause.
First, some background. The Federal Vacancies Reform Act (FVRA) sets the default rules for the temporary filling of offices that require Senate confirmation. It places careful limits on the use of acting officers in order to prevent the executive branch from circumventing the Senate’s advice-and-consent role. The Homeland Security Act incorporates the FVRA’s rules with regard to the office of secretary of homeland security, but it also modifies those rules to prevent unexpected gaps in the secretary’s office. Specifically, when the secretary’s office is vacant, 6 U.S.C. § 113 directs that the department’s second-ranking officer—or, if that position is also vacant, its third-ranking officer—must serve as acting secretary. And because there may be times when the department’s top three positions are all vacant, the Homeland Security Act permits the secretary to designate a “further order of succession” under which lower-level department officers may serve as acting secretary. It is under such an order, the Trump administration claimed, that Kevin McAleenan became acting secretary in 2019 when then-Secretary Kirstjen Nielsen resigned.
Unfortunately for the administration, the Homeland Security order that supposedly authorized McAleenan to be acting secretary did no such thing. (The documents surrounding McAleenan’s ascension were not publicly available until a congressional oversight letter revealed one of them in late 2019.) Under that order, which was signed by then-Secretary Nielsen, McAleenan would have been first in line to take over when the secretary was “unavailable to act during a disaster or catastrophic emergency.” But Homeland Security has a separate line of succession for all other vacancies in the secretary’s office, including those following a secretary’s resignation. And under that separate, non-emergency line of succession, McAleenan was not entitled to become acting secretary after Nielsen’s resignation. (The first person in line was Christopher Krebs, director of the Cybersecurity and Infrastructure Security Agency.) McAleenan took over anyway, and before he resigned from government later that year, he purported to establish a new order of succession to make Chad Wolf his replacement.
As noted, five courts have ruled that McAleenan never validly became acting secretary, meaning that he had no power to install Wolf as his successor. A sixth court has ruled that even a valid acting secretary cannot designate an order of succession under 6 U.S.C. § 113, as McAleenan tried to do. No court has upheld McAleenan’s or Wolf’s legitimacy.
When Wolf abruptly announced that he was stepping down as acting secretary in January, he cited this parade of “meritless court rulings” as a key factor in his decision. In a subsequent interview, he elaborated: “As I talked with the attorneys, and we talked with the Department of Justice and others, there was no, there was no light at the end of the tunnel, there was no avenue to really fight this.” The creativity of the administration’s lawyers was not yet exhausted, however, as seen in the tortuous ratification effort described above.
A lot is at stake. The cases in which courts have already issued rulings against Wolf and McAleenan involve many critical issues, including the previous administration’s attempt to prohibitively increase the costs of applying for asylum, naturalization and other immigration benefits; its effort to drastically restrict employment authorization that enables asylum-seekers to support themselves while their claims proceed; its endeavor to restrict immigration by expanding the term “public charge” beyond its long-standing meaning; and, most recently, its attempt to essentially dismantle the nation’s asylum system through a wide-ranging overhaul of its substantive and procedural rules. Other pending cases involve still more Homeland Security initiatives.
With much of the Trump administration’s anti-immigrant legacy on the line, it’s not a surprise that the administration made one last effort to breathe validity into Wolf’s and McAleenan’s policies. But that effort is doomed for multiple reasons. Discussed below are just a few of the flaws in Wolf’s attempt to ratify his and McAleenan’s illegal actions.
Most obviously, Wolf was never the lawful acting secretary of homeland security—as the courts have uniformly held. Therefore, he could not designate a new order of succession for the secretary’s office to make Gaynor his replacement. According to the prior order of succession that the Trump administration claimed was in force at the time, the person who would have succeeded Wolf as acting secretary was not Peter Gaynor but, rather, the head of the Transportation Security Administration, David Pekoske. Wolf had no power to amend that order of succession to elevate Gaynor, because the power to establish such an order is reserved exclusively to “the Secretary” under 6 U.S.C. § 113. Because Wolf could not lawfully make Gaynor the new acting secretary, Gaynor could not exercise the secretary’s powers. For that reason, Gaynor could not “delegate” any of the secretary’s powers—including ratification authority—back to Wolf.
Apart from this, there’s an independent reason why Wolf was not a valid acting secretary at the time he attempted to make Gaynor his replacement. On Jan. 6, President Trump suddenly withdrew Wolf’s nomination to be the permanent secretary of homeland security, the second nomination of Wolf that Trump had made. As Wolf himself noted in his recent interview, that withdrawal triggered another barrier to his service as acting secretary. A 2009 appropriations measure prohibits the payment of funds to anyone who is filling a Senate-confirmed office in an acting capacity after that person’s second nomination to the same office has been withdrawn. Trump’s unexplained withdrawal of Wolf’s nomination—by all appearances a reaction to Wolf’s critical comments about the U.S. Capitol riot—had the effect of sabotaging Trump’s own agenda by further confirming Wolf’s ineligibility to be acting secretary.
Even if Wolf had been a lawful acting secretary, he still could not have changed Homeland Security’s order of succession to make Gaynor the next in line. As noted above, one court has already ruled that only a Senate-confirmed secretary, not an acting secretary, may establish an order of succession under 6 U.S.C. § 113. The relevant provision distinguishes “the Secretary” from an “Acting Secretary,” and there was no reason for Congress to have empowered acting secretaries to alter Homeland Security’s order of succession. The function of those orders is to allow designated officers to step into the secretary’s role immediately when an unexpected vacancy arises, due to the department’s role in combating time-sensitive threats. That purpose—avoiding delays that could imperil national security—is not served by permitting acting secretaries to elevate their preferred successors above those chosen by a Senate-confirmed secretary. Reading the statute to allow this would also raise concerns about whether the Homeland Security Act unconstitutionally permits inferior officers (acting secretaries) to appoint other inferior officers.
Further, even if the Homeland Security Act permitted acting secretaries to establish orders of succession as a general matter, it can’t credibly be read as permitting them to use such orders to abdicate their own status as acting secretary—in favor of their chosen replacement—while retaining their underlying positions in the department. The act prescribes a mandatory line of succession under which the department’s second- or third-ranked officer “shall” serve as acting secretary, and it permits that line of succession to be extended beyond those two officers in a “further” order of succession. This mandatory line of succession would cease to be mandatory if an acting secretary, in the middle of a vacancy, could decide that he or she wanted someone else to be the acting secretary instead.
The real point of Homeland Security’s latest “ratification” maneuver, it seems, was not to overcome these legal objections. After all, the entire maneuver was premised on Wolf’s authority to employ the acting secretary’s powers (to make Gaynor his replacement), a premise that the courts have roundly rejected. Instead, the department seems to have attempted something like a harmless-error defense here. In simplified form, its position is apparently this: If then-Secretary Nielsen’s order failed to make McAleenan the acting secretary—as the courts have ruled—then, according to the applicable order of succession governing vacancies that follow a resignation, the person who should have been acting secretary in January 2021 was the FEMA administrator, Gaynor. Homeland Security is basically arguing that even if its main contention is wrong, and neither McAleenan nor Wolf was entitled to serve as acting secretary, Gaynor was the person eligible to fill that role, and he therefore had the power to ratify prior department actions—or delegate that power to Wolf.
This parallel-universe approach is similar to a ploy the administration tried last fall without success. At that time, in a bizarre gesture, Gaynor purported to exercise the power he “would have had” under an “alternate scenario” in which he were the rightful acting secretary—insisting all the while that he was not the rightful acting secretary. More precisely, he signed a document claiming to alter Homeland Security’s order of succession and place Wolf in that role, divesting Gaynor of his own status. As courts were quick to point out, however, Gaynor never served as acting secretary or was vested with the authority of that office. And so his hypothetical exercise of legal authority that he denied ever possessing could not have made Wolf the acting secretary.
Now that Gaynor was allowed to serve as acting secretary for a brief period, Homeland Security has essentially tried again. But even assuming that Gaynor was the person who should have been the acting secretary (which is not clear), he still could not have delegated the authority to Wolf to ratify Wolf’s illegal prior actions.
Among other things, the unusual arrangement that Homeland Security orchestrated falls short of constituting a bona fide ratification. Most significantly, Gaynor didn’t purport to ratify Wolf’s or McAleenan’s actions himself. That’s presumably because it would have been absurd for him to claim, after being acting secretary for less than a day, that he had sufficiently familiarized himself with the varied, complex and far-reaching measures that Wolf and McAleenan approved over the previous two years so as to reach an independent conclusion that those measures should be retained. His solution, though, was no better—delegating his ratification authority to the very person who unlawfully preceded him as acting secretary for 14 months. A true ratification, in the words of the U.S. Court of Appeals for the D.C. Circuit, “purges any residual taint or prejudice left over from the allegedly invalid appointment.” Under that standard, Gaynor’s device clearly does not cut it. If it did, Homeland Security could routinely allow the wrong people to wield the secretary’s powers for months or years and then, at the last minute, permit the proper official to serve just long enough to help validate everything that came before.
Separately, the FVRA flatly prohibits the ratification of agency actions that were taken in violation of its limits on acting service. Under 5 U.S.C. § 3348(d)(2), if “any person” performs a “function or duty” of the secretary’s office without being authorized to serve as acting secretary by the FVRA—or by an alternative succession statute like the Homeland Security Act—then that person’s unauthorized action “may not be ratified,” even by a validly serving official. The FVRA’s Senate report explains the rationale for this penalty: “[I]f any subsequent acting official or anyone else can ratify the actions of a person who [violated the statute’s limits], then no consequence will derive from an illegal acting designation,” a result that would “undermin[e] the constitutional requirement of advice and consent.” Because Wolf and McAleenan were not authorized to be acting secretary by the Homeland Security Act, the FVRA or any other statute, this penalty applies, supplying one more reason that Wolf’s putative ratifications have no legal effect.
These are only some of the flaws in the Department of Homeland Security’s 11th-hour attempt to redeem Wolf’s and McAleenan’s policies. While the Trump administration filed notices of ratification in several of the lawsuits challenging those policies, there’s every reason to expect that its last effort to avoid accountability for ignoring the Appointments Clause will fare no better than its previous efforts.