The Senate Should Ask Chad Wolf About His Illegal Appointment

Tomorrow, on August 6, Acting Secretary of Homeland Security Chad Wolf will testify before the Senate Homeland Security and Governmental Affairs Committee regarding the deployment of federal officers to Portland, Oregon. While there are many critical questions to ask about the specter of federal officers occupying an American city, senators should not lose sight of an issue lurking in the background—the fact that Wolf’s tenure as acting secretary violates the law.

The nightly clashes with protestors in Portland seem to have abated for the moment following the withdrawal of federal officers. But the fact that the clashes took place is all the more disturbing because officers were arguably taking orders from illegitimate superiors. Wolf’s tenure—and that of several of the other highest-ranking officials within DHS, such as Ken Cuccinelli, whose laughable title is “Senior Official Performing the Duties of the Deputy Secretary of Homeland Security and Senior Official Performing the Duties of the Director of U.S. Citizenship and Immigration Services”—is not authorized by the federal statutes that govern the use of acting officials. Therefore Wolf’s service in an “acting” capacity violates the Constitution’s Appointments Clause, which requires that high-ranking government officials serve in their positions only with the approval of the Senate.

Wolf’s unlawful service is far from an arcane constitutional question. This scenario—high-ranking officials wielding the immense power of the United States government without being subject to the advice and consent of the Senate—is exactly what the Founders sought to avoid when they included the Appointments Clause in the Constitution.

As an agency, DHS has been particularly willing to advance President Trump’s interests and disregard the law in numerous circumstances. This may be attributable to a complicated mix of factors, but there is little doubt that the lack of permanent leadership—individuals confirmed by the Senate—and the installation of Trump loyalists in key positions throughout the agency plays an important role. At the very least, the president’s refusal to nominate anyone for high-ranking positions within DHS deprives the Senate of important opportunities—through the scrutiny of confirmation hearings—to ensure that nominees are competent to serve in leadership roles in a critical government agency, conduct oversight and otherwise act as a check on the agency’s worst impulses.

The Senate has such an opportunity tomorrow, and should use it to press Wolf not only on the events that transpired in Portland and his overall fitness for the critical role in which he now serves, but also on the legal validity of his position. Below, we suggest some possible questions.

But before getting to those questions, it is important to understand the legal context in more detail. The fact that Wolf’s tenure violates the law and the Constitution exposes many DHS actions to legal challenge. This includes the government’s conduct in Portland and—to point to another recent and high-profile example—DHS’s recent refusal to fully restore the Deferred Action for Childhood Arrivals (DACA) program, which is memorialized in a policy signed by Wolf. Indeed, recent lawsuits have raised such claims, and more are likely to follow. (Full disclosure: Our organization, Protect Democracy—along with lawyers from Debevoise & Plimpton and Perkins Coie—represents several protesters and organizations in a lawsuit against the federal government for its actions in Portland, which includes legal claims regarding Wolf’s position as acting secretary. Protect Democracy has brought similar challenges regarding other DHS officials.)

Legal Context

To the Framers of the Constitution, the king’s appointment power was “the most insidious and powerful weapon of eighteenth century despotism,” one that the king used to appoint “‘miniature infinitesimal Deities’” to spread the “weeds of tyranny” across the colonies. The Framers feared that if they misallocated the appointment power, the Constitution would fail, even if it were “in all other respects the best in the world.” To avoid the British system’s flaws, they decided not to give the president—in the words of Alexander Hamilton in Federalist Paper No. 76—the “sole disposition of offices,” which might result in high-ranking officials who had “no other merit than that of . . . possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”

Instead, the Framers drafted a Constitution that required the Senate’s “Advice and Consent” for the appointment of “Officers of the United States.” The Appointments Clause distinguishes between two types of officers: principal officers, who can only serve with the Senate’s advice and consent, and “inferior Officers” who are subject to the same advice and consent requirement unless Congress “by law vest[s] the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” In other words, Congress can decide whether inferior officers will be appointed by someone other than the president and whether they need the Senate’s advice and consent; but principal officers must receive the Senate’s advice and consent.

Recognizing that Senate confirmation can take time and that the government must continue to function, Congress has enacted statutes to allow for vacant offices that require the Senate’s advice and consent (sometimes referred to as “PAS positions” or “PAS offices,” an odd acronym for Presidential appointment with Senate confirmation) to be filled temporarily by acting officials. As most relevant to the current discussion, the Department of Homeland Security’s organic statute explicitly requires the secretary of homeland security to be nominated by the president and confirmed by the Senate (as required by the Appointments Clause), but also includes provisions that govern the order of succession for the position of acting secretary of homeland security when the office of the secretary is vacant.

Another statute, the Federal Vacancies Reform Act (FVRA), is “the exclusive means for temporarily authorizing an acting official to perform the functions and duties of” a vacant PAS office unless “a statutory provision expressly . . . designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity,” or expressly authorizes another official to make that designation. The FVRA limits the time during which an office may be filled by an acting official to 210 days (with certain exceptions not relevant here).

It should seem obvious at this point that the law governing vacancies is notoriously complex and convoluted. But it can be boiled down to four simple propositions as applied to Wolf: First, Wolf is not the Acting Secretary of Homeland Security under the DHS succession statute. Second, the FVRA does not control the order of succession when the office of the Secretary is vacant; but even if it did, Wolf would not be the acting secretary because the applicable time limit has expired. Third, because Wolf is not the lawful acting secretary under either statute, his attempt to exercise the power of that office violates the Appointments Clause. And fourth, because Wolf is not the lawful acting secretary, many of his actions are null and void.

The DHS Succession Statute

Under the relevant provisions of the succession statute, vacancies in the office of the secretary of homeland security are to be filled by the deputy secretary of homeland security and then, if that office is also vacant, by the under secretary for management. Where all of those offices are vacant, the statute provides for a secretary-established order of succession.

In April 2019, Secretary Kirstjen Nielsen—the most recent Senate-confirmed secretary of homeland security—tried to amend the existing succession order (see Enclosure B to the linked letter to the Comptroller General from the House Committee on Homeland Security, which in turn refers to Executive Order 13,753 for a hierarchy for DHS succession) right before she resigned, in order to make Customs and Border Patrol Commissioner Kevin McAleenan the next in line to be the acting secretary. However, she amended only section II.B, the provision of the succession order that applies to situations where the secretary is incapacitated due to “a disaster or catastrophic emergency.” Section II.A, the portion of the succession order that applies to “the Secretary’s death, resignation, or inability to perform the functions of the Office” (emphasis added)—the section that applied to Nielsen’s circumstances—remained unchanged.

When Nielsen resigned, therefore, Executive Order 13,753 still governed the order of succession. But upon her resignation, McAleenan assumed the position of acting secretary, despite the fact that two other Senate-confirmed individuals were ahead of him to succeed to that office. Then, on Nov. 8, 2019, McAleenan issued a directive (see Enclosure A) attempting to amend the order of succession to elevate the under secretary for strategy, policy, and plans to be fourth in line to lead the agency. When McAleenan resigned on Nov. 13, 2019, Wolf—who had been confirmed to the relevant under secretary position on that same day—purported to become acting secretary. But Wolf’s purported authority to serve in that position rests on McAleenan’s invalid change to the succession order—invalid because McAleenan himself was not the lawful acting secretary when he issued the order.

In a very recent court filing in Casa de Maryland v. Wolf, a pending case challenging the legality of Wolf’s tenure as acting secretary, the government for the first time addressed the flaws in the succession order. In short, the government admits that Nielsen’s amendment to the succession order did not in fact change the order of succession in situations where the vacancy in the office of the secretary arises due to a resignation, but urges the court to rely on its representation about what Nielsen meant to do, rather than what she actually did. (In making this argument, the government relies on a memorandum from the DHS General Counsel—later signed by Nielsen—in which the entire “Discussion” section—the bulk of the memo—is redacted.) But it is a fundamental principle of legal interpretation that courts interpret and enforce the law as written, without reference to what the drafters might have intended (unless there is some ambiguity to be resolved, which there is not here).

The FVRA

As previously discussed, the DHS succession statute is not the only potentially relevant law. In most cases, the FVRA governs the president’s abilities to fill vacancies in PAS positions. However, Wolf’s service as acting secretary violates the statute because the relevant time limit on the tenure of an acting official has long expired.

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