The Constitution requires that high-level federal officers like the Secretary of Homeland Security be appointed by the president with the advice and consent of the Senate.  Senate confirmation is designed to ensure accountability of agency heads, who enjoy significant authority to implement policy.  To further preserve the Senate’s constitutional prerogative, congress passed the Federal Vacancies Reform Act (FVRA), which places strict limits on the use of “acting” officers to fill vacant positions.

Despite these safeguards, the Department of Homeland Security has operated without a Senate-confirmed Secretary.  In June 2020 when the Department’s purported Acting Secretary, Chad Wolf, approved two final rules that significantly harm asylum applicants seeking work authorization.  At the time Wolf approved the two policies, neither he nor anyone else was eligible to serve as Acting Secretary under the FVRA.

CASA de Maryland and several other nonprofit organizations that serve asylum seekers challenged the new rules as unlawful and sought a preliminary injunction stopping the rules from going into effect.  CAC filed an amicus brief in support of that challenge.

Our brief first described how Congress enacted the FVRA in response to the executive branch’s increasing noncompliance with the Appointments Clause and with prior legislation that limited the use of acting officials.  Next, we explained that Chad Wolf is violating the FVRA by serving as Acting Secretary of Homeland Security, for two independent reasons.  First, under the FVRA and the statutes governing the Department, Wolf was never eligible to become the Acting Secretary, and he assumed that position unlawfully.  Second, even if Wolf’s initial appointment were valid, the FVRA’s time limits on service for an Acting Secretary expired well before Wolf approved the new asylum rules.  Finally, our brief described the consequences of Wolf’s unlawful tenure.  Because Wolf is not a valid Acting Secretary, the FVRA requires that the asylum rules he approved must have no force or effect.  In addition, his approval of the rules must also be set aside under the Administrative Procedure Act (APA), which requires that all agency actions be taken “in accordance with law.”

The District Court for the District of Maryland issued a preliminary injunction against the new asylum rules.  The court concluded, as we argued, that the plaintiffs are likely to succeed in their argument that Chad Wolf’s installation as Acting Secretary was invalid.  The court also determined that the plaintiffs are likely to succeed in their argument that the new asylum rules violate the APA because DHS “failed to respond to significant concerns raised or to consider an important aspect of the problem” when issuing its new rules.