DHS's Wolf and Cucinelli Appointed Illegally?

So Who Actually IS In Charge of DHS?

Who is running the Department of Homeland Security (DHS) today? Nobody really seems to know. Seriously—it is an open legal question.

President Trump is of the view that the current acting secretary of the Department of Homeland Security is Chad Wolf. He gets the job because he was confirmed by the Senate to be the undersecretary for the Office of Strategy, Policy and Plans and his predecessor, Acting Secretary Kevin McAleenan, changed the order of succession at DHS before he resigned, to make Wolf next in line.

The Homeland Security Act says that if the secretary position is vacant, the deputy secretary and the undersecretary for management are second and third in line for the position. But it also provides the secretary with further authority to designate who is third, fourth, etc. in line to be acting secretary of DHS. That’s what McAleenan did in November 2019 before he quit—he changed the order so that Wolf would be third—and since the deputy and undersecretary for management positions have been vacant for a long while (since 2018 and April 2019 respectively) that meant that Wolf would take the title of acting secretary.

But what if McAleenan himself was not really the acting secretary? Would his redesignation of the order of succession be effective?

Those are not idle questions. In fact, to the contrary, they’re issues raised by the general counsel of the Government Accountability Office (GAO), in an opinion that GAO issued today. And his view is that neither McAleenan nor Wolf have legal standing as acting secretary...