The administration has quietly reinstalled Chad Wolf as acting secretary of the homeland defense agency, following a judge’s declaration on September 11 that he was improperly installed.
The legal maneuver may help protect many recent DHS rules and policies from many lawsuits that have been filed by pro-migration advocates and business groups.
The maneuver was described in a September 11 statement to a judge in New York, just after a federal judge in Maryland invalidated a DHS directive on the grounds that Wolf had been improperly installed as the acting DHS secretary:
As DHS has consistently explained, Acting Secretary Wolf is serving lawfully under the HSA, and under valid orders altering the DHS order of succession issued by Ms. Nielsen and Mr. McAleenan. But DHS recognizes that ongoing challenges to Acting Secretary Wolf’s service risk an unnecessary “distraction to the mission of the Department of Homeland Security.” Ex. 6, Order Designating the Order of Succession for the Secretary of Homeland Security (Sept. 10, 2020). Thus, “out of an abundance of caution,” the Senate-confirmed Administrator of the Federal Emergency Management Agency (FEMA), Peter T. Gaynor —who, upon the submission of Mr. Wolf’s nomination and under the terms of Executive Order 13753, would be the officer next in line to serve as Acting Secretary—issued a new order of succession on September 10, 2020, relying on “any authority vested in [him] as Acting Secretary of Homeland Security.” Id.
In other words, although DHS disagrees with the legal theory advanced by plaintiffs in these and other cases, if that theory is correct, the result would be that Mr. Gaynor (not Mr. Wolf) would be the proper Acting Secretary under the Executive Order’s order of succession—and thus would be authorized under 6 U.S.C. § 113(g)(2) to alter the order of succession. And as a result of that order approved by Mr. Gaynor—through which the FEMA Administrator and the Under Secretary for Strategy, Policy, and Plans would become sixth and fourth in line, respectively—Mr. Wolf would then become Acting Secretary, as the most senior official now serving in the line of succession.
The lawsuits against Wolf multiplied after the Government Accountability Office concluded in mid-August that Wolf had been improperly appointed when officials did not follow required steps, and a series of officials were quickly replaced.
The description of Wolf’s legal status was included in a document filed by officials to counter a lawsuit against the DHS’s updated policy on President Barack Obama’s 2012 Deferred Action for Childhood Arrivals (DACA) amnesty.
The GAO reported in August:
Upon [DHS] Secretary Kirstjen Nielsen’s resignation on April 10, 2019, the official who assumed the title of Acting Secretary had not been designated in the order of succession to serve upon the Secretary’s resignation. Because the incorrect official assumed the title of Acting Secretary at that time, subsequent amendments to the order of succession made by that official were invalid and officials who assumed their positions under such amendments, including Chad Wolf and Kenneth Cuccinelli, were named by reference to an invalid order of succession.
In August, President Donald Trump nominated Wolf to be the DHS secretary, despite Wolf’s close ties with the visa worker industry.
The Senate may not vote on the nomination until 2021.
— Neil Munro (@NeilMunroDC) September 13, 2020