Acting DHS head offers alternative succession path

Chad Wolf, under fire in the courts and from government watchdogs about the legal status of his appointment at acting head Department of Homeland Security, is offering an alternative explanation of his standing.

Wolf has been serving as acting secretary at DHS since November 2019. His appointment was secured due to a revision in the DHS order of succession that put Wolf, who was confirmed by the Senate to be undersecretary of policy and plans, as next in line to take over the top job.

However, the Government Accountability Office challenged that claim in August with a legal opinion that stated neither Wolf, his deputy Ken Cuccinelli nor his predecessor as acting secretary Kevin McAleenan were properly appointed to their posts.

The GAO opinion relies on readings of the Homeland Security Act, the legislation that authorized the department, and on the Federal Vacancies Reform Act, which sets out conditions under which senior officials can serve in leadership jobs on an acting basis.

The consequences of violating the FVRA can be serious – and include rolling back any decisions made by an acting official if a violation is affirmed in federal court. Wolf and others are defendants in multiple lawsuits – mostly aimed at overturning immigration policy moves -- that cite allegations of improper succession.

In an effort to deflect against an adverse legal judgement – Wolf issued a memo on Sept. 17 out of an "abundance of caution" to ratify his actions as acting secretary. The memo and an accompanying explanation are scheduled to be published Sept. 23 in the Federal Register.

According to the memo, Wolf's nomination by President Donald Trump to the top DHS job in August allows for the consideration of an "alternate scenario" of Wolf's ascent to the top job. Even if the initial appointment of Wolf was unlawful – which he does not concede – Wolf's nomination to lead DHS allows for the temporary elevation of Federal Emergency Management Agency Administrator to exercise the authority of the DHS secretary.

In that theoretical capacity, FEMA Administrator Peter Gaynor issued a real memo on Sept. 10, 2020, that designates the same order of succession that was established in November 2019 by former Acting Secretary McAleenan.

That act by Gaynor, assuming it was valid, essentially cut off Gaynor's authority under the FVRA and established Wolf's legitimacy under the succession order.

"Once the Gaynor Order was executed, it superseded any authority Mr. Gaynor may have had under the FVRA and confirmed my authority to continue to serve as the acting secretary," Wolf wrote. "Thus, in addition to the authority I possess pursuant to the November 8, 2019 order of succession effectuated by former Acting Secretary McAleenan, the Gaynor Order alternatively removes any doubt that I am currently serving as the Acting Secretary."

The memo concludes with an affirmation of all actions taken by Wolf from the start of his tenure as acting DHS chief through September 10 – a move that DHS hopes will eliminate any adverse legal consequences arising from conflicting interpretations of the legality of Wolf's appointment.

However, the agency is not saying that the Gaynor Order, Wolf's memo or their publication in the Federal Register are in any way necessary to affirm Wolf's legal standing as head of DHS.

"Neither the ratification nor the publication is a statement that the ratified actions would be invalid absent the ratification," Ian Brekke, deputy general counsel at DHS, states in the Federal Register notice.

Despite the new path offered to explain Wolf's legitimacy, GAO is sticking to its reading of the succession.

"GAO stands by its original decision of August 14 in which we concluded that Mr. Wolf and Mr. Cuccinelli were named to their respective positions of Acting Secretary and Senior Official Performing the Duties of Deputy Secretary by reference to an invalid order of succession," Shirley Jones, GAO's managing associate general counsel told FCW in an emailed statement. "We also stand by our reconsideration decision in which we concluded that DHS had not shown that our original decision contained either material errors of fact or law, nor had DHS provided information not previously considered that warranted reversal or modification of the decision. "

This story was updated Sept. 22 to include comment from the Government Accountability Office.