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GAO Rules DHS Secretary and Deputy Are Not Valid Officeholders

Vacancy rules were not followed in the appointment of the past two DHS secretaries.

The Government Accountability Office has determined that Acting Homeland Security Secretary Chad Wolf and his deputy, Ken Cuccinelli, are not legally entitled to hold their offices. Further, the previous acting DHS secretary, Kevin McAleenen, also apparently held the office illegally.

The problem is multi-tiered but stems from the Trump Administration’s habit of staffing executive branch offices with acting officials rather than having appointees go through Senate confirmation hearings. The tactic was followed to avoid the problem of having Democrats filibuster President Trump’s picks but is also due to the fact that many Trump Administration officials don’t stay in their jobs long. Under the current status of Senate rules, only judicial nominees are exempt from filibusters.

The GAO found that the problem began with the resignation of Kirstjen Nielsen, who resigned as DHS secretary in April 2019. McAleenen, then the commissioner of U.S. Customs and Border Protection, succeeded Nielsen. The problem was the McAleenen was not next in line for the job. Under the Homeland Security Act, Christopher Krebs, the director of the Cybersecurity and Infrastructure Security Agency, was next in line of succession when Nielsen stepped down.

“Mr. McAleenan assumed the title of Acting Secretary upon the resignation of Secretary Nielsen, but the express terms of the existing designation required another official to assume that title,” wrote Thomas H. Armstrong, the GAO’s general counsel, in the agency’s report to Congress.

“As such, Mr. McAleenan did not have the authority to amend the Secretary’s existing designation. Accordingly, Messrs. Wolf and Cuccinelli were named to their respective positions of Acting Secretary and Senior Official Performing the Duties of Deputy Secretary by reference to an invalid order of succession,” he added.

McAleenen’s illegal promotion to head the DHS caused a cascading failure that now puts the authority of Wolf and Cuccinelli in doubt. McAleenen appointed Wolf as the Under Secretary for Strategy, Policy, and Plans and Cuccinelli as Principal Deputy Director of U.S. Citizenship and Immigration Services. Because McAleenen was improperly in the role of acting secretary, appointments that he made are also being questioned. Wolf’s own elevation to acting secretary is now threatened because the GAO report found him “ineligible” for the job based on his appointment by a secretary who improperly headed the agency.

The GAO findings don’t have an immediate effect but the matter is being referred to the DHS Inspector General to determine who should be heading the agency. The IG will also consider whether actions and policies implemented by McAleenen, Wolf, and Cuccinelli should be overturned.

Back in March, a federal judge ruled that Cuccinelli was illegally appointed to head the US Citizenship and Immigration Services. As part of the ruling, the judge overturned changes to the asylum process implemented by Cuccinelli on the grounds that he had no authority to do so. The new GAO determination could similarly vacate a number of decisions going back more than a year.

Reps. Bennie Thompson (D-Miss.) and Carolyn Maloney (D-N.Y.), who are on the Homeland Security and Oversight committees, called upon Wolf to resign, saying in a statement, “GAO’s damning opinion paints a disturbing picture of the Trump Administration playing fast and loose by bypassing the Senate confirmation process to install ideologues.”

DHS officials told the Washington Post that the GAO report was “baseless.”

The GAO ruling raises concern about many other positions in the Trump Administration that have been filled with temporary appointments. Back in February, the Washington Post noted that 22 cabinet-level jobs had been filled with acting officials for a total of more than 2,736 days.

The revelation that DHS has been operating with an illegal command structure for more than a year underscores the fact that there are few legitimate shortcuts in the federal bureaucracy. There is a right way to do things and a wrong way. Trying to cut corners often causes more problems than following the rules, inconvenient though they may be. In this case, not following the rules may mean that a year-and-a-half of DHS decisions are walked back and that taxpayers have lost money that was paid in salaries to people who had no authority to do their jobs.

The whole matter recalls my dad’s sage advice about how to do a job: “If you don’t have time to do it right, you’ll have to find time to do it over.”

If you would like to continue the discussion on social media, you can visit David Thornton’s Facebook page or follow him on Twitter.

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