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Congressional Hispanic Caucus Join Calls for Emergency Review of the Legality of DHS Leadership Appointees

Dec 3, 2019
Press Release
Trump Administration may have violated federal law in elevating Wolf and Cuccinelli

WASHINGTON— Congressional Hispanic Caucus (CHC) members called on Gene L. Dodaro, Comptroller General at the U.S. Government Accountability Office, to conduct an expedited review of the legality of the appointment of Chad Wolf as Acting Secretary of Homeland Security and Ken Cuccinelli as Acting Deputy Secretary. The members write that the Trump Administration may have violated the Federal Vacancies Reform Act and the Homeland Security Act by elevating Wolf and Cuccinelli to leadership roles at the Department of Homeland Security. This request joins previous requests for a full review from Homeland Security Chairman Bennie G. Thompson and Oversight and Government Reform Committee Chairwoman Carolyn Maloney.

The letter was signed by CHC Chairman Joaquin Castro (TX-20) Congressman Ruben Gallego (AZ-07), Congresswoman Nanette Diaz Barragán (CA-44), Congressman Adriano Espaillat (NY-13), Congresswoman Veronica Escobar (TX-16), Congresswoman Grace F. Napolitano (CA-32), Congressman Raúl M. Grijalva (AZ-3), Congresswoman Nydia Velázquez (NY-12), Congresswoman Sylvia Garcia (TX-29), Congressman Juan Vargas (CA-51), Congressman Jesús "Chuy" García (IL-4), Congressman Albio Sires (NJ-8), Congressman Lou Correa (CA-46), Congressman Ben Ray Luján (NM-3), Congresswoman Norma Torres (CA-35), Congressman Tony Cárdenas (CA-29), and Congresswoman Linda T. Sánchez (CA-38).

“The CHC is gravely concerned that DHS’s top officials may be serving in violation of the law and will continue to do so until the GAO makes a determination. The Department, at the direction of agency leadership, continues to introduce consequential policy although their decisions may be in legal jeopardy,” the Members wrote. “Therefore, the CHC joins Chairman Thompson and Chairwoman Maloney in urging an expedited review to resolve whether Mr. Wolf and Mr. Cuccinelli are legally serving in their respective positions and whether Mr. McAleenan legally served as Acting Secretary of Homeland Security.”

Full text of the letter follows and can be found here.

Dear Comptroller General Dodaro:

The Congressional Hispanic Caucus (CHC) joins Chairman Bennie G. Thompson and Chairwoman Carolyn B. Maloney in requesting an expedited review to resolve whether Mr. Chad Wolf and Mr. Ken Cuccinelli are legally serving in their respective positions as Acting Secretary of Homeland Security and as Senior Official Performing the Duties of Deputy Secretary.  We also join the Chairs’ request in asking the U.S. Government Accountability Office (GAO) to resolve whether Mr. Kevin K. McAleenan legally served in the position of Acting Secretary of Homeland Security.

The Federal Vacancies Reform Act (FVRA) generally limits the period an acting official can perform the functions and duties of certain vacant positions that require presidential appointment and Senate confirmation to 210 days, beginning on the date the vacancy occurs.[1] Former Homeland Security Secretary Kirstjen M. Nielsen resigned on April 10th, 2019 triggering the 210 day statutory limit, which ended on November 6th, 2019.  Since November 7th, 2019, two Acting Secretaries have served while the President has failed to formally nominate a candidate for Secretary. 

On April 10th, prior to her departure, then-Secretary Kirstjen M. Nielsen updated the “DHS Orders of Succession and Delegations of Authorities for Named Positions,” but did not change the order of succession,[2] leaving in place the line of succession under Executive Order 13753 (EO 13753).[3]  As the Chairs point out, per the EO 13753, Mr. McAleenan was not next in the order of succession possibly rendering his appointment unlawful from the start under the Homeland Security Act.  Therefore, his “Amendment to the Order of Succession for the Secretary of Homeland Security,” issued on November 8, 2019,[4] which serves as the basis for Mr. Wolf’s appointment, may be invalid—because Mr. McAleenan was never properly named Acting Secretary in the first place, or alternatively because the Amendment came after the 210-day statutory limit for Acting officials under the FVRA.

The CHC is gravely concerned that DHS’s top officials may be serving in violation of the law and will continue to do so until the GAO makes a determination. The Department, at the direction of agency leadership, continues to introduce consequential policy although their decisions may be in legal jeopardy. Therefore, the CHC joins Chairman Thompson and Chairwoman Maloney in urging an expedited review to resolve whether Mr. Wolf and Mr. Cuccinelli are legally serving in their respective positions and whether Mr. McAleenan legally served as Acting Secretary of Homeland Security.

Sincerely,

# # #

The Congressional Hispanic Caucus (CHC), founded in December 1976, is organized as a Congressional Member organization, governed under the Rules of the U.S. House of Representatives. The CHC is dedicated to voicing and advancing, through the legislative process, issues affecting Hispanics in the United States, Puerto Rico and U.S. Territories.