A Judge Agreed That Chad Wolf Is Likely Serving Illegally At DHS. What Happens Next?

Acting Homeland Security Secretary Chad Wolf (R) steps off Air Force One upon arrival at Andrews Air Force Base in Maryland on September 1, 2020. - US President Donald Trump said September 1, 2020 on a visit to prote... Acting Homeland Security Secretary Chad Wolf (R) steps off Air Force One upon arrival at Andrews Air Force Base in Maryland on September 1, 2020. - US President Donald Trump said September 1, 2020 on a visit to protest-hit Kenosha, Wisconsin that recent anti-police demonstrations in the city were acts of "domestic terror" committed by violent mobs. (Photo by MANDEL NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images) MORE LESS
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September 15, 2020 12:23 p.m.

A federal judge recently became the first to find that Chad Wolf, the acting secretary of Homeland Security, was likely named to that role unlawfully. 

It wasn’t a hypothetical legal question: With her 69-page opinion late Friday, Judge Paula Xinis temporarily barred several DHS policies that applied to thousands of members of two legal services organizations challenging them.

The legal challenges to the policies — which set extreme delays and limits on asylum seekers’ work authorizations — could be the first of many to successfully use Wolf’s own questionable legal status against him. Trump formally nominated Wolf to be the Senate-confirmed DHS secretary late Thursday.

Several groups have challenged policy decisions from Wolf and his top deputy, Ken Cuccinelli, on the basis that they’re not actually lawfully in their positions. With one ruling down, attorneys for challengers of DHS rules could see more to come.

On Friday, Xinis ruled that the DHS’ legal challengers were likely to successfully argue that the work authorization rules were “arbitrary and capricious,” referring to a legal standard for government rule-making. But she also signaled agreement with their argument that the rules were implemented by an acting DHS secretary who isn’t lawfully in that role. 

Who else could this affect? 

Government lawyers have not disputed that, should the plaintiffs succeed in their legal challenge, the rules “promulgated without authority must be set aside,” Xinis noted. And that same legal truth could apply to other legal challenges to DHS rules. 

As Anne Joseph O’Connell, an authority at Stanford Law School on “acting” officials and administrative law, wrote in Lawfare Monday, “A wide range of federal suits have challenged the acting leaders.” 

As O’Connell told TPM last month, “Clever litigants are going to want to go through the Federal Register and look for Wolf or McAleenan’s name on final actions” and pursue lawsuits against those rules.

The cases flagged by O’Connell run the gamut of DHS’ Trump-era policies. 

For example, Wolf announced in a July memo that new applicants to the DACA program would not be accepted despite a Supreme Court ruling that found the Trump administration had unlawfully attempted to end the program.

A lawsuit in the Eastern District of New York asserts that because Wolf was improperly appointed to his role, “Defendant Wolf lacks the authority to revoke critical components to the DACA program.” A separate challenge over Wolf’s DACA memo argues he “was never lawfully designated Acting Secretary of Homeland Security.”

A July suit in Texas, arguing that DHS’ decision to waive dozens of laws in order to build President Trump’s border wall was unlawful, asked a judge to declare that “Mr. Wolf is unlawfully serving as DHS Acting Secretary.” 

In a response filed Monday, government lawyers disputed that legal argument and offered new documents that it said shored up Wolf’s status.

Still, they acknowledged that the “ongoing challenges” to Wolf’s service risked becoming a “distraction to the mission of the Department of Homeland Security.”

What’s the Law? 

Why is Wolf, in Judge Xinis’ eyes, likely holding his position illegally? 

It goes back to Wolf’s predecessors in the job. When former DHS Secretary Kirstjen Nielsen resigned last year, she designated Kevin McAleenan to be her replacement in an “acting” capacity. But McAleenan, according to DHS’ own “succession” document, wasn’t actually supposed to be next in line for the job. As a result, when McAleenan himself resigned and named Wolf his successor — also on an “acting” basis — the decision wasn’t actually legal.

That’s what the government Government Accountability Office announced in an opinion last month — and it’s the same argument that legal advocates for the immigration organizations have successfully used in their case. 

The GAO decision was published the same day as the case’s first hearing, Xinis noted in her opinion Friday. As a result, “neither the parties nor the Court had any meaningful opportunity to digest the decision.” Even government lawyers weren’t prepared to take an stance on it — though three days later, DHS’ top lawyer sent a scathing letter to the GAO, taking issue with the legal logic it used and, among other petty grievances, mocking one of the lawyers who worked on the GAO document.  

As Xinis wrote Friday, government lawyers subsequently went back and forth between arguing that the succession document “does not mean what it says,” that it is “non-binding,” and also that Nielsen had successfully ordered edits to the succession document before designating McAleenan to be her acting replacement. 

The judge wasn’t convinced. 

“Again, the Government provides no authority for this Court to eschew the plain meaning of Nielsen’s order and divine her intent as meaning something else,” she wrote. 

By extension of that fact, she wrote, McAleenan’s appointment was likely invalid — as was Wolf’s and the rules Wolf instituted.

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