This is the latest in a series of legal quandaries surrounding the department’s line of succession.
Top House Democrats are requesting an emergency review of Chad Wolf’s recent appointment as acting secretary of Homeland Security and Ken Cuccinelli’s appointment as acting deputy secretary.
Rep. Bennie Thompson, D-Miss., chairman of the House Homeland Security Committee, and Rep. Carolyn Maloney, D-N.Y., acting chairwoman of the House Oversight and Reform Committee, sent a letter to the Comptroller General on Friday asking for an expedited review of the appointments.
At issue is whether Kevin McAleenan, the former acting secretary until he recently resigned, had the authority to change the order of succession at the department, which he did on Nov. 8 prior to his departure.
“Recently released documents suggest that the installation of Mr. Wolf as the acting secretary may violate the law, as Mr. McAleenan may not have been lawfully serving as acting secretary. If so, numerous actions taken by both Mr. McAleenan and Mr. Wolf may be invalid, including Mr. Wolf’s designation Wednesday of Ken Cuccinelli as senior official performing the duties of the secretary,” they wrote. “This designation is the latest attempt to install Mr. Cuccinelli in a senior leadership position at the Department of Homeland Security when the administration knows that the Senate would not confirm him to that.”
Thompson and Maloney said that upon former Secretary Kirsjen Nielsen’s departure, McAleenan, then U.S. Customs and Border Protection Commissioner, was not next in line for the position because Nielsen changed the order of delegation authority in the event she was “unable to act during a disaster or catastrophic emergency.” She did not change the order of succession in the case of “death, resignation or inability to perform.” The letter includes a copy of the document outlining this.
Therefore, this may put some of McAleenan’s actions in “legal jeopardy,” including his amendment to the order of succession on Nov. 8. McAleenan had planned to leave at the end of October, but then “agreed to stay on into next week when it became clear that Wolf couldn't step immediately into the job,” since he wasn’t Senate confirmed, Politico reported. Trump initially wanted immigration hard-liner Cucinelli to be secretary, but Senate Republicans pushed back, according to Politico.
Even if McAleenan’s appointment was valid, then the Nov. 8 amendment might still be illegal since it happened after the 210-day limitation for acting officials under the Federal Vacancies Reform Act. Meaning, his own appointment had expired, Thompson and Maloney wrote.
As a reporter for CQ Roll Call pointed out on Twitter on Friday, David Pekoske, former deputy secretary, is listed as acting deputy secretary on the department’s website—a position Cuccinelli held the day before. The department has not explained the change.
Lawmakers from both parties have called on the president to fill the many vacancies in the department. Seven of the 18 posts requiring Senate confirmation are vacant without a nominee pending, including three top positions. Trump has repeatedly expressed his preference for acting leaders because it gives him more flexibility, but Senate Homeland Security and Governmental Affairs Committee Chairman Sen. Ron Johnson, R-Wis., and ranking member Sen. Gary Peters, D-Mich., said this hurts the department.
“None of this insanity would have happened in the first place if, heaven forbid, the Senate actually insisted that the President nominate qualified candidates for confirmation,” tweeted Steve Vladeck, University of Texas law professor. “Versus abdicating its institutional role and enabling these (and other) abuses of the process.”