Acting Secretary of the Department of Homeland Security Chad Wolf and two other top DHS officials should be on the way out, according to Democratic leaders in Congress. A new opinion from the Government Accountability Office finds their appointments were illegal. GAO says the appointments in question violated the Federal Vacancies Reform Act and the Homeland Security Act.

GAO has the authority to evaluate appointments made under the 1998 Federal Vacancies Reform Act, Tom Spulak, Partner at King & Spalding, told Government Matters Monday. According to Spulak, DHS’s error lies in the fact that former Secretary of Homeland Security Kirstjen Nielsen failed to change the order of succession to provide for Kevin McAleenan to succeed her.

The Federal Vacancies Reform Act “was designed to provide the exclusive vehicle for temporarily filling vacant advice and consent positions and to try and prevent the undue delay in a president submitting nominees for the Senate to confirm him or her,” explained Ricardo Pitts-Wiley, Partner at Federal Practice Group. The Homeland Security Act created an exception to this rule allowing DHS to change their own order of succession.

“I think it’s clear that the DHS made a mistake,” said Spulak. “We are a nation of laws, and these are not statutes that are hard to follow.”

Pitts-Wiley agreed, stating that “Nielsen made a mistake in not properly revising the order of succession before she resigned.” He added that a bigger problem is the attempt by agencies to avoid the checks and balances the Senate is supposed to provide on executive functions, which puts the public in danger from a security standpoint.

DHS’s response to these allegations is that by swearing McAleenan in, Nielsen “for all intents and purposes” amended her order of succession, Spulak stated.

Although GAO does not have the ability to enforce the report, Congress can take action, according to Spulak. Plaintiffs bringing cases against DHS can also benefit from GAO’s decision, according to Pitts-Wiley.

Beatrix Haddon
Published 11:30 PM, August 24, 2020