On Saturday, the bill finally fell due for Donald Trump’s habit of bypassing Senate approval by naming his Taste of the Week as Acting Undersecretary of State for vague MAGA priorities. US District Judge Nicholas Garaufis ruled that Acting Secretary of State for Homeland Security, Chad Wolf, had been unlawfully appointed. And because Wolf was never legally responsible for DHS, his attempts to restrict the program of delayed action on the arrival of children are a legal nullity.
Sad Vuvuzela womp womp.
Presumably, the incoming Biden government will make every effort to restore the program that will allow undocumented people brought here as children to work and travel without the risk of deportation. However, since this is a legal blog, it’s worth investigating carefully how this decision came about.
Spoiler Alert: It wasn’t because of the DHS’s excellent advocacy.
As Judge Garaufis noted, Trump has admitted that he has used his ability to temporarily appoint civil servants to circumvent the legal requirement for the Senate to confirm the Senate appointment of executives. ‘And my acting is going really well. I kind of like acting. That gives me more flexibility. “
As part of this “flexibility”, the administration relied on the heads of the agencies to adjust the succession order in their departments to the whims of the president. And so it was on April 7, 2019, when DHS Secretary Kirstjen Nielsen resigned at the request of the President. Trump immediately tweeted that Kevin McAleenan, then Commissioner for US Customs and Border Protection, would take over the office of acting secretary.
Except – change of plot! – The DHS had a succession order and it was not McAleenan’s turn. So Neilsen quickly resigned, signed a memo changing the ranking of delegations, and resigned on April 10th.
It’s a pattern familiar to anyone who has watched the Trump administration for the past four years. Step 1: you are fired. Step 2: Sign a document so any hideous cretin who caught the president’s wandering eye can replace you. Step 3: mean tweets.
The problem was that the DHS had two parallel succession orders: one that governed the death, resignation, or inability of the secretary to perform the duties of the office, and one that governed the event of a disaster or catastrophic emergency would take effect. And Nielsen signed one document that modified the second. Whoopsie!
On November 8, 2019, McAleenan signed another resolution to change the order of the DHS, making Chad Wolf second in line. Then, on Nov. 13, McAleenan got the boot after stealing heavy fire from Trump’s allies against immigrants for failing to support ICE raids on families who were not previously involved in law enforcement.
Several plaintiffs sued on the grounds that McAleenan never had legal powers and could therefore not delegate them to Wolf. The parties in the present case challenged Wolf’s authority to cut off new DACA filings, prohibit participants from traveling abroad, and require annual permits renewals, which he did in a July 28, 2020 memo after the Supreme Court approved Trump’s efforts -Government, to cancel, had blocked the program in its entirety for violating the Administrative Procedure Act.
The Government Accountability Office released a report on August 14, 2020 confirming plaintiffs’ position that McAleenan and Wolf had been illegally appointed, to which DHS responded in a Bonkers letter telling GAO in advance of the election of the Partiality was accused.
But Judge Garaufis fully agreed with GAO’s analysis and was not convinced by the DHS attorney’s testimony that Neilsen meant that she had changed all of the agency’s successor orders.
“On the basis of the clear text of the operational succession order, neither Mr. McAleenan nor Mr. Wolf had the legal authority to act as acting secretary,” the court ruled. “Hence, the Wolf Memorandum was not an exercise of legal authority.”
Although the DHS despised GAO and insisted that the delegation was completely kosher for Nielsen McAleenan himself swearing in, the agency took some steps to repair the damage that fall. On September 10, 2020, FEMA Administrator Peter Gaynor pretended to “exercise any authority assigned to me as Acting Minister of Homeland Security” to create a new succession order, which Wolf retroactively increases, and Wolf himself issued a ” Ratification of Actions Taken “out 18 to bless all of his previous commands.
But Judge Garaufis was unimpressed. “[A]Although litigants may make alternative arguments, the court is not aware of any authority that would enable a government official to take alternative administrative action, “he remarked dryly, and later remarked,” Even if Administrator Gaynor should be acting secretary, DHS can exercise its authority not only for the pretense of surrendering its authority to the DHS’s preferred choice, and only alternatively. “
In a footnote about the reliability of the representations made by the government in court about Gaynor’s attempted delegation, there are also some ways to clear your throat:
With the court finding that the Gaynor Order had no legal effect, it doesn’t matter that the government is now confused as to whether the Order was enacted after Mr Wolf was appointed secretary on September 10, 2020 – as originally claimed that – or before. (See Defs. ‘Letter of November 13, 2020 (Dkt. 341).) The court wishes the government all the best in getting out of this self-made thicket.
The practical impact of this decision is likely to be minimal. Plaintiffs received class certification, but the incoming Biden administration will likely be back on DACA applications, allowing recipients to travel without losing eligibility and discuss the case. But it’s a fitting coda for four years of deliberate disregard of the Senate verification process that the Trump administration’s attempt to put protective measures in place for immigrant children died because those people couldn’t get them together to properly repeal the law, and then theirs Efforts to close the kneecap failed because no one at DHS was responsible.
Saved by lousy drawing!
Memorandum & Order [Batalla v. Wolf, No. 1:16-cv-04756-NGG-VMS (E.D.N.Y. Nov. 14, 2020)]
Elizabeth Dye lives in Baltimore, where she writes on law and politics.