After yet another federal judge ruled that the acting secretary of the Department of Homeland Security doesn’t actually hold that position legally, the department tried one more Hail Mary to make its legal problems disappear.
But as the Stanford University administrative law expert Anne Joseph O’Connell told TPM, DHS’ past attempts to wrap up this mess fell far short of what the law required.
“You need the football in hand before you throw the Hail Mary pass,” she observed.
Acting Secretary Chad Wolf, Judge Nicholas Garaufis wrote Saturday, did not have the authority to place new restrictions on the DACA program because of issues with his own legal status as the leader of DHS.
As Garaufis determined — echoing other federal judges and the Government Accountability Office before him — Wolf has never actually legally held the “acting DHS secretary” role because of a clumsy error by the administration.
In essence, Wolf’s predecessor’s predecessor, Kirstjen Nielsen, screwed up the paperwork designating a succession order before she resigned from her role in 2019. As a result, the acting DHS secretary that took Nielsen’s place, Kevin McAleenan, wasn’t legally appointed, nor was Wolf after him.
That means countless rules that Wolf has implemented now face renewed legal scrutiny, including the DACA memo that the court addressed on Saturday.
On Tuesday, DHS announced a surreal legal fix that the department says solves all of Wolf’s problems — a maneuver to “re-confirm” Wolf’s status as acting DHS secretary. The Department tried something similar earlier this year; at the time, TPM called it “Schrödinger’s DHS Secretary.”
Here’s how it works, according to DHS: On Sept. 10, when President Trump formally nominated acting DHS Secretary Wolf to become Senate-confirmed DHS Secretary Wolf, FEMA Secretary Pete Gaynor hypothetically took over as acting DHS secretary.
Two months after that, on Saturday, Gaynor “exercised any authority of the position of Acting Secretary that he had to designate an order of succession.”
As part of his duties as Quantum DHS Secretary, Gaynor reissued a revised succession order putting Wolf ahead of himself for the acting secretary job.
“Once Mr. Gaynor’s order was executed, it superseded any authority Mr. Gaynor may have had under the Federal Vacancy Reform Act and confirmed Acting Secretary Wolf’s authority to continue to serve as the Acting Secretary,” DHS said.
It’s not at all clear that the latest DHS clean-up effort will work.
For starters, when the Department tried what was essentially the same maneuver in September, on the day that Trump formally nominated Wolf to become the Senate-confirmed secretary, they didn’t do it correctly. As government lawyers acknowledged on Friday, the feds appeared to have screwed up their timing, accidentally issuing the “Gaynor Order” around an hour before Wolf’s nomination was formally submitted to the Senate.
As Wolf noted in a footnote of the document he signed this weekend, Gaynor released the re-done order on Saturday “out of caution, due to uncertainties related to the timing of the signing of that order on the date of my nomination to the U.S. Senate.”
What’s more, as Judge Garaufis pointed out Saturday, DHS hasn’t submitted any notice to Congress about Gaynor serving as the acting DHS secretary. And while there is still no indication that Gaynor has ever been empowered by DHS to exercise the powers of the acting secretary, he wrote, “there is every indication to the contrary.”
“Even if Administrator Gaynor should be Acting Secretary, DHS cannot recognize his authority only for the sham purpose of abdicating his authority to DHS’s preferred choice, and only in the alternative,” the judge added.
This sort of bureaucratic time travel is unusual and complicated, as Garaufis acknowledged in a footnote.
“The court wishes the Government well,” he said, “in trying to find its way out of this self-made thicket.”