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DHS tries to self-correct succession order amid challenges to acting secretary's authority

Posted November 17, 2020 7:55 p.m. EST

— The Department of Homeland Security tried to self-correct its line of succession for the second time in the last three months over concerns about acting Secretary Chad Wolf's authority.

Over the weekend, a federal judge ruled Wolf was not legally serving as acting secretary when he signed rules limiting applications and renewals for the Deferred Action for Childhood Arrivals program.

Wolf's legitimacy has been an ongoing struggle for the department and has threatened to derail policies and other actions put in place during his tenure. CNN reported Friday that there has been a renewed push to get Wolf confirmed as Homeland Security secretary before Inauguration Day, which if successful, could help alleviate legal challenges.

Kirstjen Nielsen was the last person confirmed by the Senate as secretary of Homeland Security. Since her ouster in April 2019, the department has been operating with acting officials, throwing into question the authority of those who have succeeded her and raising doubts about the legitimacy of their actions.

In August, the Government Accountability Office concluded that the appointments of Wolf and Ken Cuccinelli were named in an "invalid order of succession" and their appointments have been challenged in federal court. The report also detailed the line of succession at DHS, which includes the Federal Emergency Management Agency administrator.

On Saturday, DHS had Pete Gaynor, who is the Senate-confirmed FEMA administrator, temporarily exercise the authority of Homeland Security secretary to try to alleviate concerns over Wolf's legitimacy as acting chief of the department.

Under one interpretation, Gaynor would be the lawfully serving acting secretary based on the Federal Vacancies Reform Act.

"Out of an abundance of caution," Gaynor had to reissue the order of succession, according to DHS. His order, issued on September 10, appears to have been signed before Wolf's nomination was formally submitted to the Senate, leading to issues with timing.

Several federal judges have raised concerns that Wolf was not lawfully appointed, a point not missed by Judge Nicholas Garaufis, who ruled in the DACA case.

"The court wishes the Government well in trying to find its way out of this self-made thicket," he wrote in a footnote about Gaynor's previous order.

House Homeland Security Chairman Bennie Thompson, a Mississippi Democrat, called Gaynor's move "legal gymnastics" that won't change the fact that department leadership made a "massive error over a year ago in improperly designating an Acting Secretary."

"I hope Federal courts continue to rule as they have been: that Chad Wolf's appointment was illegal and his policies are invalid," Thompson wrote in a statement. "Thankfully we will have better stewards of the Department in just two short months."

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