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Wednesday, March 29, 2023

OIG: Only a Court Can Issue ‘Binding Determination’ on Legality of Wolf’s Appointment

The Department of Homeland Security’s Office of Inspector General said it will be up to the courts to decide whether Acting Homeland Security Secretary Chad Wolf is legitimately serving in his role after the Government Accountability Office found that his appointment was not legal.

The GAO review, issued a month ago, found that the acting secretary who appointed Wolf and Acting Deputy Secretary Ken Cuccinelli, Kevin McAleenan, was improperly installed in his role per the chain of succession and therefore didn’t have the authority to amend DHS rules to pave the way for Wolf and Cuccinelli.

In a Monday letter to the House Homeland Security and Oversight and Reform committees, Inspector General Joseph Cuffari said there were “several troubling aspects to GAO’s decision,” including “although GAO’s decision finds that the Director of the Cybersecurity and Infrastructure Security Agency should be serving as Acting Secretary, the decision inexplicably refers to DHS OIG the question of ‘who should be serving as the Acting Secretary.'”

“GAO’s decision carries no binding force. DHS indicated that it disagreed with GAO’s conclusion and sought reconsideration, but on August 21, 2020, GAO issued a decision ‘declin[ing] to reverse or modify’ its August 14, 2020 decision. The parties to this inter-branch dispute are at an impasse,” he wrote. “Considering the stakes, what is needed is a binding determination on the legality of Messrs. Wolf and Cuccinelli serving in their respective positions of Acting Secretary and Senior Official Performing the Duties of Deputy Secretary. Neither GAO nor DHS OIG can issue a binding determination on that issue, but a federal court can and probably will.”

In a 69-page ruling Friday blocking the Trump administration from enforcing new asylum employment authorization restrictions, federal Judge Paula Xinis wrote that the plaintiffs — 20 state attorneys general — “are likely to demonstrate McAleenan’s appointment was invalid under the agency’s applicable order of succession, and so he lacked the authority to amend the order of succession to ensure Wolf’s installation as Acting Secretary.”

New York Attorney General Letitia James declared afterward that “every decision Mr. Wolf has made — from trying to punish Dreamers to targeting New Yorkers with an unlawful Trusted Traveler suspension, and everything in between — has been perpetrated by a man with no authority and no business sitting in the chair of the acting secretary of Homeland Security.”

The DHS OIG said it would be “pointless” to “add its voice to what has become a bitter inter-branch disagreement.”

“There is no reason to believe that all stakeholders, including DHS, Congress, GAO, and private parties who object to decisions of acting DHS leadership, would accept a determination by DHS OIG on the matters referred and treat it as an enforceable ruling,” Cuffari wrote. “Moreover, the federal courts that are considering the issues addressed in GAO’s decision would give no weight to the opinion of DHS OIG.”

DHS Assistant Secretary of Public Affairs Alexei Woltornist said in response to Cuffari’s letter that “the inspector general has concurred with what both the facts and the law made clear from the start: GAO’s report was erroneous, non-binding, and issued under highly questionable authority under federal law.”

“Once again, the department urges GAO to reconsider its incorrect and transparently partisan report for the sake of the truth as well as the office’s dwindling reputation as a supposedly nonpartisan oversight mechanism,” Woltornist added.

President Trump nominated Wolf to serve as DHS secretary. The Senate Homeland Security and Governmental Affairs Committee has scheduled his nomination hearing for Sept. 23.

Bridget Johnson
Bridget Johnson is the Managing Editor for Homeland Security Today. A veteran journalist whose news articles and analyses have run in dozens of news outlets across the globe, Bridget first came to Washington to be online editor and a foreign policy writer at The Hill. Previously she was an editorial board member at the Rocky Mountain News and syndicated nation/world news columnist at the Los Angeles Daily News. Bridget is a terrorism analyst and security consultant with a specialty in online open-source extremist propaganda, incitement, recruitment, and training. She hosts and presents in Homeland Security Today law enforcement training webinars studying a range of counterterrorism topics including conspiracy theory extremism, complex coordinated attacks, critical infrastructure attacks, arson terrorism, drone and venue threats, antisemitism and white supremacists, anti-government extremism, and WMD threats. She is a Senior Risk Analyst for Gate 15 and a private investigator. Bridget is an NPR on-air contributor and has contributed to USA Today, The Wall Street Journal, New York Observer, National Review Online, Politico, New York Daily News, The Jerusalem Post, The Hill, Washington Times, RealClearWorld and more, and has myriad television and radio credits including Al-Jazeera, BBC and SiriusXM.

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