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.  The requirement of Senate confirmation is designed to ensure the accountability of agency heads, who enjoy significant authority to establish policy.  To further preserve the Senate’s constitutional prerogatives, 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 since April 2019.  In July 2020, the Department’s purported Acting Secretary, Chad Wolf, issued a memorandum that drastically scaled back the DACA program.  Among other things, Wolf’s memo orders DHS to stop accepting new DACA applications and cuts in half the renewal period for existing DACA participants.  Further, the memo makes these changes apply retroactively to people who had already filed their applications before the memo was issued.  At the time Wolf issued this memo, however, he was not eligible to serve as Acting Secretary of Homeland Security under the FVRA.

Individuals harmed by the Department’s new policy, as well as more than fifteen states adversely affected by that policy, challenged the legality of Wolf’s memo in court.  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 Homeland Security Act (HSA), Wolf was never eligible to become the Acting Secretary, and he therefore violated that Act and the FVRA when 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 attempted to change the DACA policy.  Finally, our brief described the consequences of Wolf’s unlawful tenure.  Because Wolf is not a valid Acting Secretary, the FVRA requires that the new policy he adopted must have no force or effect.  In addition, Wolf’s adoption of this policy must also be set aside under the Administrative Procedure Act, which requires that all agency actions be taken “in accordance with law.”

The District Court for the Eastern District of New York held, as we argued, that Chad Wolf was not lawfully serving as Acting Secretary of Homeland Security under the HSA.  The court therefore determined that Wolf did not have the legal authority to issue the memorandum suspending the DACA program.

This decision is a significant victory for the rule of law and for those eligible for the DACA program.