GAO: DHS acting secretary, top deputy were appointed illegally

Acting Secretary of Homeland Security Chad Wolf, his predecessor Kevin McAleenan and top deputy Ken Cuccinelli were installed in their posts without regard to the established order of succession, according to a legal opinion by the Government Accountability Office.

House Homeland Security Committee Chair Bennie Thompson (D-Miss.) and then-acting House Oversight and Government Reform Chair Carolyn Maloney (D-N.Y.) requested GAO take a look at succession at DHS, whether personnel shuffles were in line with the Federal Vacancies Act or Homeland Security Act.

There's no immediate legal impact of the GAO opinion. GAO referred the matter to the DHS Inspector General to review the matter further.

The DHS press office did not immediately respond to a request for comment.

President Donald Trump's plans to designate Wolf as acting agency head were well known by the time the Senate confirmed him to the post of undersecretary for policy and plans. Even in an administration that is staffed by acting officials in senior roles, DHS stands out for having relatively few Senate-confirmed leaders.

Wolf then named Cuccinelli, who has not been confirmed by the Senate to any position in the federal government, to the post of first assistant at the U.S. Citizenship and Immigration Services – a Senior Executive Services position. On that basis, Cuccinelli was designated as the acting head of USCIS and the acting DHS deputy secretary.

In a statement, Thompson and Maloney said the GAO opinion was "damning" and called for Wolf and Cuccinelli to step down from their roles.

"In light of this decision, Mr. Wolf should immediately step down and return to his Senate-confirmed position as undersecretary for strategy, policy and plans. The President should appoint an apolitical career official to run the Department temporarily and follow the Constitution by swiftly nominating a permanent secretary," they said. "As for Mr. Cuccinelli, a political pundit plucked by the President to serve in multiple senior roles at DHS for which he is woefully unqualified, he should immediately resign from the federal government and retire his unprofessional official Twitter account."

A separate legal action challenging Cuccnelli's appointment at USCIS found he was not lawfully appointed, and ordered the rollback of several decisions made under his authority. Cuccinelli recently dropped an appeal in the case. On Twitter, Cuccinelli styles himself as "@homelandken" and "Acting Deputy Secretary Ken Cuccinelli." In court documents, however, he appears as "Kenneth T. Cuccinelli II, In his purported official capacity as Acting Director of U.S. Citizenship and Immigration Services."

It has been almost 500 days since DHS had a Senate-confirmed secretary.

Vacancies Act and DHS

Normally, the Federal Vacancies Act is the principle authority for determining when acting officials serving in positions that require Senate confirmation are legally situated and have not overstayed their welcome. However, in 2016, the Homeland Security Act was amended to place the Under Secretary for Management third in the line of succession after the Secretary and Deputy Secretary.

Nielsen used her authorities under that law in February 2019 to establish two pathways to establishing a successor: one in the event the Secretary died or resigned and another if they were unavailable during an emergency. That order also prohibited acting officials from being included in the line of succession.

The delegation stated that if the secretary dies or resigns, DHS will follow the line of succession spelled out in a 2016 Executive Order issued by the Obama administration, which states that after the Deputy Secretary and undersecretary for Management, the next officials in line are the Administrator of the Federal Emergency Management Agency and the Under Secretary of the National Programs and Protection Directorate, later re-named as CISA.

That means Christopher Krebs, Director of the Cybersecurity and Infrastructure Security Agency, should have been put in place as Nielsen's replacement when she stepped down as Secretary last year, according to GAO.

DHS officials claim Nielsen updated her delegation on April 9, the day before her resignation, to amend the order of succession to place a Senate-confirmed CBP commissioner next in line, but the update only applied to cases where the Secretary was unavailable during an emergency. Since Nielsen resigned, GAO concluded that the succession spelled out in the executive order still holds.

"Mr. McAleenan would have been the appropriate official had Secretary Nielsen been unavailable to act during a disaster or catastrophic emergency. That was not the case here," auditors wrote.

McAleenan made subsequent changes to the order of succession that allowed for the appointment of Wolf, who then made further changes to allow for the appointment of Cuccinelli. The DHS General Counsel sent a memo to Nielsen April 9 confirming Nielsen's desire to change the order of succession, but GAO said the "plain language of the delegation controls…speaks for itself."

It's not clear what the immediate impact of the decision will be on DHS' leadership structure. The GAO is an arm of Congress, and its conclusions aren't legally binding on the executive branch. However, it could impact how courts view legal challenges to DHS policies implemented under their term of service.

A spokesperson for the Homeland Security committee told FCW they are still weighing options in regards to holding hearings or taking other oversight actions in response to the decision.