The Trump administration has increasingly relied on temporarily filling top positions with people, which has been criticized by lawmakers. The Department of Homeland Security – the third largest federal ministry – is no exception. There has been no secretary confirmed by the Senate since Kirstjen Nielsen, who resigned in April 2019.
As of 2017, the department has five secretaries – only two of whom have been approved by the Senate: John Kelly and Nielsen. The others have taken on the role of actors and the department heads are often at the mercy of the president and are therefore prone to increasing politicization.
A Justice Department attorney told a court hearing on Friday that the Office of Legal Counsel would review GAO̵
Out of 27 top roles at DHS, 10 are cast as actors. The division’s three main immigration agencies – Immigration and Customs Control, Customs and Border Protection, and U.S. Citizenship and Immigration Services – have been led by acting officials for more than a year.
The federal law on the reform of vacancies prescribes how most federal vacancies are filled. However, despite the findings of GAO, there is no legal obligation for the administration to respond. That’s because of the courts, which already have cases pending contesting Wolf and Cuccinelli’s appointments.
Shortly after its publication, the GAO report was published in a court hearing about the asylum law challenges published against Wolf. The lawsuit also challenges Wolf’s authority.
“It’s not binding on reading the GAO statement, but it did pretty much track what I thought of this issue, amazing as it is that we’re on day 500 and we still haven’t got a secretary installed by that GAO has been nominated for president and confirmed by the Senate, “said Judge Paula Xinis of the Maryland District Court.
Justice Department attorney Jane Andersen emphasized that GAO is not binding on the executive branch.
The DHS did not immediately respond to a request for comment.
Wolf, who previously served as Undersecretary of State for the Office of Strategy, Policy and Plans at DHS, assumed the role of Acting Secretary, with Cuccinelli as number two.
“Since the wrong official assumed the title of acting secretary at this point, subsequent changes to that official’s succession order were invalid and officials who took up their positions under such changes, including Chad Wolf and Kenneth Cuccinelli, were named with reference to an invalid order of succession, “concluded the report, noting that the legality of the action taken by the officers was referred to the Inspector General of DHS.
GAO also referred the question of who should serve as acting secretary and officer in charge of acting as assistant secretary to the DHS Inspector General.
Friday’s report was suggested by Democratic House Committee Chairs Bennie Thompson and Carolyn Maloney, both of whom have repeatedly criticized the DHS’s lack of steadfast leadership.
After the GAO results were released, lawmakers called the report “damn”.
“In light of this decision, Mr. Wolf should resign immediately and return to his Senate-approved position as Undersecretary of State for Strategy, Policy and Plans. The President should appoint a career political officer to temporarily head the department and follow the Constitution through the rapid appointment of a permanent secretary” wrote the chairmen.
“As for Mr. Cuccinelli, a political expert who has been plucked by the President to serve in several leadership positions at DHS for which he is absolutely unqualified, he should resign immediately from the federal government and terminate his unprofessional official Twitter account.”
This story has been updated with the response from the Justice Department.