GAO is Congress’s investigative arm, not some rando watchdog group.
This is the federal government’s top auditing agency claiming that the people at the top of Homeland Security were illegally appointed.
Even so, I’m not sure anything else needs to be said but this:
We are depressingly at a point where nobody seriously believes it will matter that senior government officials have been determined to hold their posts illegally, or that anyone will do anything about it. The law is irrelevant, and we’ve all sort of resigned ourselves to it.
— Julian Sanchez (@normative) August 14, 2020
What does it even matter? Trump’s been playing games with executive vacancies for years now. I wrote about the chicanery involved in appointing Cuccinelli when it happened as well as the baroque bureaucratic reshuffling that eventually led to Wolf’s elevation to acting secretary. Not only do McConnell and Senate Republicans care not the slightest whit about it, even Pelosi and Schumer haven’t used their leverage to try to force Trump to submit his acting appointees to Senate advice and consent. Cuccinelli’s case is especially egregious because Trump knew that the Senate would reject him. He installed Cuccinelli in a dubious, unorthodox manner because he wanted to deny the legislature its rightful constitutional prerogative.
No one cares, even Democrats who have a partisan incentive to care. I guess they figure they’re likely to win the election and so they too will soon have a chance to grossly abuse the appointments process. It’ll be nice for them when McConnell speaks up to object and they throw a handful of examples of Trump doing the same thing right in his face.
Here’s the GAO opinion, which should be skimmed if only to appreciate the regulatory thicket a professional auditor has to hack through to answer a question as simple as, “Who becomes acting secretary of DHS when the secretary resigns?” Let me attempt a quick-and-dirty explanation here. When Kirstjen Nielsen resigned last year, there was no deputy secretary to replace her. Under the law, the next in line was the undersecretary of management — but Trump didn’t want that person in charge, he wanted Kevin McAleenan of the Border Patrol in charge. So the undersecretary of management was pressured to resign at the same time as Nielsen.
Let’s pause for a moment now and reflect on the fact that the executive branch is such a shambles that the top three positions in DHS were all vacant at once. Because Trump never bothered nominating a permanent replacement for Nielsen — to a Republican Senate, mind you, which might be expected to confirm his choice — we’re now approaching the 500th day without a Senate-confirmed leader for the country’s main federal security agency. Under federal law, acting appointees aren’t supposed to serve for more than seven months.
Anyway. Before she left, Nielsen set about reorganizing the order of succession at DHS so that Trump could have McAleenan in charge. Which is where things get confusing — enough so that we need a visual aid from GAO to help explain it.
There are two laws governing succession, Executive Order 13573 and Annex A to the Homeland Security Act. The former governs cases where the secretary resigns, the latter governs cases where the secretary is unable to serve due to disaster or emergency. In February 2019, they each had the same order of succession when there’s a vacancy at the top. In April 2019, Nielsen amended Annex A so that McAleenan, as Border Patrol chief, would become the new acting secretary, per Trump’s wishes. Then she resigned.
But Annex A doesn’t deal with resignations, does it? It deals with cases where the secretary can’t serve due to disaster or emergency. Executive Order 13573 is the one that covers resignations. Nielsen forgot to amend that one, which means that Pete Gaynor, the head of FEMA, and not McAleenan was the lawful acting secretary of DHS.
Why does that matter? Because once McAleenan took charge, he set about doing the same thing Nielsen had done for Trump, reordering the line of succession prior to his own resignation so that Trump’s handpicked favorites, Wolf and Cuccinelli, could zoom up the rankings to serve at the top. Except, per today’s GAO ruling, McAleenan never had lawful authority to do that reordering. Which means Wolf and Cuccinelli were never lawfully appointed to their positions either.
Which means the actions taken by them in office are potentially illegal, depending upon what a court says.
[U]nder the leadership of Wolf and Cuccinelli, Homeland Security has attracted intense scrutiny for such actions as deploying federal agents to protests in Portland over the opposition of local and state leaders. And new restrictions on asylum seekers and DACA applicants have prompted lawsuits from immigration advocates.
Some of those lawsuits seek to throw out DHS actions on the grounds that DHS leadership is not legitimately in power. And now a government body has endorsed that legal argument, which O’Connell says “could be very persuasive in the courts.”
As a result, some of Wolf and Cuccinelli’s actions could be undone in court rulings.
Everyone who’s suing DHS or USCIS is going to point to GAO’s ruling that Wolf and Cuccinelli never had the legal authority to take the actions at issue in their lawsuits. What will courts do with that? How many DHS immigration actions will be overturned because Trump couldn’t be bothered to follow the constitutional process for appointments? He likes the idea of acting secretaries because they can be replaced with some other lackey at a moment’s notice, on his whim, and because their personal/ethical foibles or lack of experience pose no obstacle to appointment. After all, the Senate never gets a say on them. His price for that may be watching some of his policies, as carried out by Wolf and Cuccinelli, undone in court.
I’ll leave you with a little more from Sanchez, who knows what DHS will say next and why it doesn’t matter in context.
That is, you don’t get to plead “it’s just a technicality; the intent is clear” when you’re elaborately exploiting technicalities to evade the clear intent of a constitutional mandate.
— Julian Sanchez (@normative) August 14, 2020