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Debra D’Agostino, Founding Partner of Federal Practice Group, Talks with Washington Examiner About Eligibility of DHS Officials

Written by: Federal Practice Group
Written by: Federal Practice Group

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Watchdog agency: Top DHS officials not eligible to serve in current roles

Two top Homeland Security Department officials are not legally eligible to serve in their current positions, according to a watchdog agency in the legislative branch.

A decision released by the Government Accountability Office on Friday said acting DHS Secretary Chad Wolf and acting Deputy Secretary Ken Cuccinelli, who were appointed to their roles under the Vacancies Reform Act, "were named by reference to an invalid order of succession."

The GAO, which noted that it has not "reviewed the legality of other actions taken by these officials," said the matter has been referred to the DHS inspector general for review.

The prospect of Cuccinelli and Wolf serving in DHS leadership was first questioned last fall when acting DHS Secretary Kevin McAleenan resigned and the two were rumored to be his replacement. Federal law experts told the Washington Examiner at the time that it would be illegal to appoint Cuccinelli, a 51-year-old former attorney general from Virginia, and Wolf, the chief of staff to former DHS Secretary Kirstjen Nielsen, to that role.

President Trump named Wolf acting secretary in November, marking the organization's fifth leader since Trump took office in 2017. Wolf was nominated to be undersecretary at the department's Office of Strategy, Policy, and Plans, but has yet to be confirmed.

Trump had been in favor of moving Cuccinelli, the acting director of U.S. Citizenship and Immigration Services, or acting U.S. Customs and Border Protection Commissioner Mark Morgan into the job but was warned by his legal team against doing so because of issues with the Federal Vacancies Reform Act since both were already in acting capacities and likely could not get confirmed, several senior administration officials and top Senate Republican aides told the Washington Examiner.

Under the Federal Vacancies Reform Act of 1998, acting secretaries can only stand in for 210 days. McAleenan had just passed 200 days prior to his departure. The Trump administration would have until Nov. 6, the 210-day mark to nominate, not appoint, the next leader. If a nomination was not made, DHS would be legally bound to promote the next official in line to carry out the secretary's duties. Wolf was several people down in the chain of command but was appointed to the job.

Similarly, Cuccinelli was installed at USCIS in June 2019. Debra D’Agostino, founding partner of Washington-based Federal Practice Group and head of its federal employment law team, said the rightful temporary successor of USCIS after its leader left earlier in the summer should have been Deputy Director Mark Koumans, the highest-ranking official. Instead, McAleenan brought in Cuccinelli to fill a principal deputy director role that was created after Director L. Francis Cissna's departure.

“They created this principal deputy position that had never existed before, decided it didn’t need confirmation, shoved him in it, and they almost immediately made him acting director,” D’Agostino said. “It’s supposed to be first assistant at the time the vacancy was created, not a quick move after the fact. The law actually says first assistant at the time the vacancy came into existence.”

Anne Joseph-O’Connell, whose work focuses on administrative law and the federal bureaucracy, described it at the time as a “workaround,” saying the White House appeared to have “undermined” the Vacancies Act.

The Democracy Forward Foundation, a Washington-based legal services organization created during Trump’s first year in office, sent a letter last July to Attorney General William Barr and then-U.S. Attorney for D.C. Jessie Liu asking for the removal of what they said was an unlawfully appointed officer. The group then sued.

In March, a federal district court judge in Washington ruled that Cuccinelli had not met the legal requirements for his post at DHS, but Cuccinelli said he would not resign.

D’Agostino said an illegal appointment would be concerning in and of itself, but because Cuccinelli has been especially active changing a variety of immigration policies, it has provoked some immigration groups to sue over his policies as well as his legal ability to change those policies.

“If he has no real authority to be in that position, I mean, my goodness, everything he did could come undone,” D’Agostino said. “That’s the risk here. And I mean, oh my goodness, could Homeland Security be any more critical?”

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