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Former DHS Head Seizes New Powers to Cement Contested Rules (1)

Jan. 14, 2021, 2:58 AM; Updated: Jan. 14, 2021, 8:52 PM

Chad Wolf may no longer be the acting secretary of the Homeland Security Department, but he is still serving as a DHS political appointee and using newly delegated authorities to make legal actions he took while he was chief.

Wolf resigned from his acting position Monday and named as his successor Peter Gaynor, the Senate-confirmed Federal Emergency Management Agency head. Though many expected Wolf to depart the agency when he resigned the acting role, DHS spokesman Chase Jennings confirmed that Wolf in fact remained at the DHS in his Senate-confirmed role as undersecretary for strategy, policy, and plans.

Gaynor, now serving in an acting capacity himself, on Tuesday granted Wolf the power to ratify measures Wolf legally lacked the authority to enact during the 14 months he nominally led the department.

Wolf on Wednesday issued a four-page memorandum in which he ratified a slate of measures—including a U.S. Citizenship and Immigration Services visa fee schedule rule, a July 28 memo altering the Deferred Action for Childhood Arrivals program, several rules governing asylum processes, and the “public charge” rule—that have faced court challenges to their validity because they were laid out by Kevin McAleenan, who, like his successor Wolf, was possibly improperly serving in the role.

The latest maneuver echoes moves Gaynor and Wolf took in September, when the then-FEMA head delegated authority to Wolf in the event that he was found serving unlawfully as acting head of Homeland Security.

But courts overseeing challenges to Wolf’s more controversial immigration actions haven’t been easily swayed that the September delegation of authority cured the issue of succession, and hence the legality of actions he took as acting secretary.

‘Unpersuasive’

Judge Nicholas G. Garaufis, who sits in the U.S. District Court for the Eastern District of New York, found that Wolf’s errant appointment was the last of a chain of rule changes implemented by then-Secretary of Homeland Security Kirstjen Nielsen as she was resigning in April 2019, and then by her initial acting successor, Kevin McAleenan, in November of that year.

In an opinion issued in November, Garaufis found the first attempt by Gaynor to delegate authority to Wolf who could then ratify his prior actions “unpersuasive.” The judge ruled Wolf illegally held that acting role, and, in December, Garaufis struck down Wolf’s changes to DACA.

“Judges haven’t really shown that they’re willing to accept this type of gamesmanship with validating the past acts of this administration,” said Jesse Bless, director of federal litigation for the American Immigration Lawyers Association and counsel in some of the litigation over Wolf’s actions.

“Does that person then have the right to ratify his own misdeeds?” Bless said. “It really smells bad.”

The Government Accountability Office in a report, and other courts, have come to similar conclusions that Wolf was serving improperly.

“Ultimately, we are seeing a bunch of paperwork to yield the same substantive results on various policies,” said Anne Joseph O’Connell, a professor at Stanford Law School with a focus on administrative law and the federal bureaucracy.

The contested policies can still be challenged on other grounds, she said, whether for being contrary to statutory direction or being arbitrary and capricious under the Administrative Procedure Act.

Moreover, the latest memos “strongly” suggest that some reforms are needed to rules and policies for acting service and delegations of authority, O’Connell said.

Onus on DOJ

For lawsuits currently in the courts, Wolf’s ratification memo won’t immediately render the injunctions lifted, Bless said.

It will be incumbent upon the government to bring the ratification document to the judge to lift the injunction, he said. Then, they’ll have to make an argument that Wolf’s memo “is a gamechanger, and I don’t think they’ll do that.”

The government would have been on more solid footing if Gaynor had been the one to ratify the controversial rules and policies, Bless added. “They probably do have it right that Gaynor is the proper acting secretary, but where they depart is this turning of the ball back over to the withdrawn nominee in his previous role at the agency.”

Bless predicted that the delegation of authority to Wolf to ratify despite his resignation won’t ultimately be able to undo any of those injunctions.

(Updated with additional reporting throughout. Story originally published on Jan. 13.)

To contact the reporters on this story: Shaun Courtney in Washington at scourtney@bgov.com; Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Michaela Ross at mross@bgov.com

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