Acting DHS Secretary Wolf and his deputy are serving illegally: GAO report

The word “acting” has been used extensively during Donald Trump’s presidency, as Trump has often found it easier to appoint his friends temporarily than have them permanently confirmed by the U.S. Senate. One such official is Chad F. Wolf, acting secretary of the U.S. Department of Homeland Security. And a report released by the Government Accountability Office, according to New York Times reporter Michael D. Shear, alleges that Wolf and his deputy in DHS, Ken Cuccinelli, are serving in violation of the Federal Vacancies Reform Act of 1998.

Shear notes that the Federal Vacancies Reform Act “specifies orders of succession when senior officials resign,” adding that the GAO “said the improper appointments began after Kirstjen Nielsen was forced out of office as the department’s secretary in April 2019.”

According to the GAO’s report, “Because the incorrect official assumed the title of acting secretary at that time, subsequent amendments to the order of succession made by that official were invalid.” The GAO believes that Wolf and Cuccinelli “are serving under an invalid order of succession,” according to the Federal Vacancies Reform Act.

The GAO aren’t the only ones who believe that Cuccinelli’s appointment violates the Federal Vacancies Reform Act. In March, U.S. District Court Judge Randolph D. Moss ruled that “Cuccinelli’s appointment fails to comply with the FVRA and that policies he put in place should be nullified.”

Shear, notes, however, that GAO “does not have the ability to enforce its findings on the Trump Administration, which has repeatedly defended its appointments of Mr. Wolf and Mr. Cuccinelli. In a statement, the watchdog said that it was referring the issue to the Department of Homeland Security’s inspector general and to Congress, which could try to force their removals.”

On August 14, University of Texas at Austin law professor Steve Vladeck tweeted:

Sen. Chuck Schumer of New York shares Moss and the GAO’s concerns. The Senate minority leader has called for Wolf and Cuccinelli to step down and stressed that any policy decisions they have made at DHS should be nullified.

In an official statement, Schumer discussed the GAO’s report and said, “President Trump’s efforts to install political sycophants to implement his extreme policies in an end run around the law and Senate have finally caught up with him. The determination by an independent congressional watchdog today invalidates actions Mr. Cuccinelli and Mr. Wolf have taken, and both should immediately step down from their illegal roles.”