The top two officials at the Department of Homeland Security, acting Secretary Chad Wolf and Ken Cuccinelli, the senior official performing the duties of deputy secretary, are not legally qualified to hold those positions, a government watchdog concluded Friday.
The Government Accountability Office said Wolf and Cuccinelli assumed those jobs under an order of succession that was issued by an acting secretary who himself had no authority to hold his job. That former acting head was Kevin McAleenan, who took over after the last Homeland secretary to be confirmed by the Senate, Kirstjen Nielsen, resigned.
GAO’s conclusion has no force of law, but the agency said it is referring its conclusion to the Department of Homeland Security’s inspector general. Friday’s findings could, however, be cited in lawsuits challenging DHS policies, including stricter immigration controls.
DHS dismissed the report as mistaken.
“We wholeheartedly disagree with the GAO’s baseless report,” a spokesman said.
Omar Jadwat, director of the American Civil Liberties Union’s Immigrants’ Rights Project, said the GAO’s findings would bolster claims that DHS illegally imposed restrictions on asylum seekers.
“It could potentially be a very large problem for the administration,” he said.
Lawyers for protesters in Portland said it would also aid their lawsuit against the deployment of DHS agents in response to violence at the city’s federal courthouse.
Federal laws spell out who can take over when vacancies occur in positions held by officials who are nominated by the president and confirmed by the Senate, such as Cabinet secretaries and their deputies. The law that created the Department of Homeland Security, the Homeland Securities Act, provides an order of succession when a vacancy arises in the position of secretary.
When Nielsen resigned in April 2019, she was succeeded by McAleenan, but the GAO said he “had not been designated in the order of succession.” McAleenan changed the succession list, which allowed Wolf to succeed him. But his changes “were invalid and officials who assumed their positions under such amendments, including Chad Wolf and Kenneth Cuccinelli, were named by reference to an invalid order of succession,” the GAO said.
In response to a lawsuit, a federal judge ruled in May that Cuccinelli was unlawfully appointed to his previous position as head of U.S. Citizenship and Immigration Services, a Homeland Security agency.
According to Friday’s report, DHS told GAO investigators that Wolf and Cuccinelli were legally entitled to hold their acting positions under an order of succession signed by Nielsen the day before she resigned. But GAO concluded that those changes would apply only if the secretary was unavailable in an emergency, not in a case in which the job was vacant because of a resignation.
