The Trump administration has increasingly relied on filling senior positions with people on a temporary basis, raising criticism from lawmakers. The Department of Homeland Security – the third largest federal department – is no exception. There has not been a Senate-confirmed secretary since Kirstjen Nielsen, who resigned in April 2019.
As of 2017, the department has five secretaries – only two of whom have been confirmed by the Senate: John Kelly and Nielsen. Others have taken on the role of an action capability, often leaving department heads at the whim of the President and, as a result, vulnerable to increased politicization.
A Justice Department lawyer said at a court hearing Friday that the Office of Legal Adviser will review GAO̵7;s opinion and make a decision on it.
Of the 27 lead roles in DHS, 10 are filled with acting skills. The three main immigration agencies under the department – Immigration and Customs Enforcement, Customs and Border Protection, and U.S. Citizenship and Immigration Services – have been poisoned by acting officials for more than a year.
The Federal Vacancy Reform Act dictates how federal vacancies are filled. Despite GAO’s findings, however, the administration is not legally bound to act on it. It depends on the courts, which already have pending cases challenging the appointments of Wolf and Cuccinelli.
Shortly after its release, the GAO report already came out in a court hearing regarding the challenges against the asylum rules issued under Wolf. The lawsuit also calls into question the Wolf’s authority.
“In reading Gao’s opinion, it’s not mandatory but it was tracking quite closely what I was thinking about the issue, as amazing as it is that we are in the 500th day and we still do not have an installed secretary who is appointed by the president and confirmed by the Senate, “said Maryland District Court Judge Paula Xinis.
Justice Department attorney Jane Andersen stressed that GAO is not binding on the executive branch.
DHS did not immediately respond to a request for comment.
Wolf, who had previously served as undersecretary for the DHS Office of Strategy, Policy and Planning, took over the role of acting secretary with Cuccinelli as his second number.
“Because the incorrect official assumed the title of Acting Secretary at the time, subsequent changes in the order of succession made by that official were invalid and officials who took their positions under such changes, including Chad Wolf and Kenneth Cuccinelli , were appointed referring to an invalid order of success, “the report concluded, noting that the legality of the actions taken by officials referred to the DHS inspector general.
GAO also referred to the question of who should serve as the acting secretary and the senior official performing the duties of secretary to the DHS inspector general.
Friday’s report was driven by Democratic House committee chairs Bennie Thompson and Carolyn Maloney, both of whom have consistently criticized the lack of permanent leadership at DHS.
Following the publication of GAO’s findings, lawmakers called the report “disastrous.”
“In light of this decision, Mr Wolf should step down immediately and return to his Senate-confirmed position as Under-Secretary for Strategy, Policy and Planning. The President should appoint a political career official to temporarily head the Department and to follow the Constitution by quickly appointing a Permanent Secretary “, the chairs wrote.
“As for Mr. Cuccinelli, a political expert ousted by the President for serving in numerous old roles at DHS for which he is anxiously unqualified, he should immediately resign from the federal government and retire the account of his unprofessional official on Twitter. “
This story has been updated with responses from the Department of Justice.