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DHS Rules Jeopardized by Court’s Wolf Ruling Unless Senate Acts

Nov. 16, 2020, 10:27 PM

A federal court’s ruling that acting Secretary of Homeland Security Chad Wolf is serving unlawfully in his role is likely to have a ripple effect of undercutting other contested agency actions, though how quickly those measures could be affected remains unknown.

The Saturday ruling by U.S. District Judge Nicholas Garaufis in Brooklyn is the latest in a series of decisions questioning Wolf’s status—starting with an August report from the Government Accountability Office, which found he was serving unlawfully, and including preliminary determinations from courts in Washington, San Francisco and Greenbelt, Md.

While the Trump administration has formally nominated him to the role and continues rolling out new regulations, the Senate has not voted on his nomination, leaving actions for which Wolf is responsible legally vulnerable, if not already invalid.

Garaufis’ ruling that Wolf is serving unlawfully as acting head of DHS “will have both a backward-looking and a forward-looking effect” on immigration policies, said Jill Family, director of the Law and Government Institute at Widener University Commonwealth Law School.

“If the Trump administration tries to implement a flurry of new policies before President-elect Biden is inaugurated, those policies will be subject to the same argument” of illegitimacy, she said. Confirmation would change the scenario moving forward, “but it wouldn’t change the fact that he didn’t have the authority” before that point, she added.

If Wolf is confirmed by the Senate this year, the policy changes over which he presided could, theoretically, be ratified, said Sharvari Dalal-Dheini, director of government relations at the American Immigration Lawyers Association. It also would present a greater challenge for the next administration if it tries to address the agency’s more contested rules, Dalal-Dheini added.

“We’re concerned that as more and more laws are being struck down, there will probably be an increased push on the Senate trying to confirm him because if that theory of ratification is correct, then they could just easily fix the problem,” Dalal-Dheini said. “If these actions aren’t ratified, then it would be a lot easier for an incoming administration to settle these lawsuits, agree that he wasn’t lawfully appointed, and strike down these items.”

Unauthorized Policies

Garaufis’ ruling that Wolf is serving unlawfully also noted that his policies are similarly outside of his legal authority.

The judge found that when then-DHS Secretary Kirstjen Nielsen resigned in April 2019, her change to the rules of succession, and subsequent changes implemented by her successor, Kevin McAleenan, were in violation of the Homeland Security Act.

“Based on the plain text of the operative order of succession, neither Mr. McAleenan nor, in turn, Mr. Wolf, possessed statutory authority to serve as Acting Secretary,” Garaufis said. “Therefore, the Wolf Memorandum was not an exercise of legal authority,” addressing the DACA issue at the heart of the case.

Garaufis’ decision came as part of a lawsuit filed by Deferred Action for Childhood Arrivals recipients challenging a July 28 DHS memo Wolf signed that amended the program to further restrict participation.

The judge stopped short, however, of striking it down outright, and instead set a conference for the parties to determine next steps in the case.

The argument that Wolf’s installation as acting head of DHS didn’t follow the rule of law also has been used in challenges to the agency’s rules on asylum work permits and U.S. Citizenship and Immigration Services visa fees.

The judges in those cases have found that plaintiffs are likely to succeed on the merits of their arguments concerning Wolf’s leadership.

“It’s a key principle of administrative law that if the government official undertaking the action was improperly appointed, then all those actions are void,” Family said.

Garaufis’ ruling “is another example of an activist judge substituting his own policy preference for those of the Trump Administration,” an agency spokesperson said Sunday in an emailed response to a request for comment on the decision.

“His reasoning has already been thoroughly discredited, and his unwillingness to seriously engage on the facts or the law is disappointing,” the spokesperson said. “DHS is exploring its options to ensure its review of DACA continues as intended.”

Time Running Out

DHS didn’t immediately respond to a follow-up question about what the Garaufis ruling could mean for other agency regulations facing similar court challenges.

Absent congressional action, any rule or regulations signed by Wolf will, for now, be subject to legal challenges, said New York immigration attorney Cyrus Mehta.

“Clearly, anything that he’s signed before is very problematic,” Mehta said.

But even with the New York federal court ruling concerning Wolf and the DACA memorandum, reverting the program back to its original form “will all be based on whether the agency starts implementing it,” Dalal-Dheini said.

The more likely strategy from DHS will be an appeal to the U.S. Court of Appeals for the Second Circuit to stay the district court’s ruling. But the timeline isn’t in the current administration’s favor, with only a couple of months before the inauguration, Mehta said: “So whether they will have the time to do that remains to be seen; I think their days are numbered.”

To contact the reporter on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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