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.  And in the Homeland Security Act, Congress further limited who may exercise the powers of the Secretary of Homeland Security when that office is vacant.

Despite these safeguards, the Department of Homeland Security has operated without a Senate-confirmed Secretary.  In July 2020 when the Department’s purported Acting Secretary, Chad Wolf, directed a deployment of federal agents to quell peaceful demonstrations in Portland, Oregon.  The deployment was part of “Operation Diligent Valor,” a supposed effort to protect federal property that resulted in federal agents using violence against demonstrators and making unlawful arrests, among other things.

Groups protesting against police brutality and in support of the movement for Black lives challenged DHS’s policy as unlawful, both because Wolf was not validly serving as Acting Secretary and because the policy was not actually an attempt to protect federal property, but to suppress the First Amendment right to free speech.  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 governed the use of acting officials.  Next, we explained why Chad Wolf was not validly serving as the Acting Secretary of Homeland Security.  Under the FVRA and the statutes governing the Department, Wolf’s predecessor, Kevin McAleenan, did not have the authority to designate Wolf as his successor because McAleenan himself was serving as Acting Secretary illegally.  In addition, the time limits for service by an Acting Secretary ran out before Wolf took on that role.

Finally, our brief described the consequences of Wolf’s unlawful tenure.  Because Wolf never legally held the position of Acting Secretary, the Administrative Procedure Act required that his policy of deploying federal agents to Portland must be set aside as unlawful by the courts.  And because the FVRA’s penalties for illegal appointments also applied, Wolf’s order was void from the outset and cannot be ratified after the fact.

On November 15, 2021, the parties agreed to resolve the case without further litigation, and the District Court for the District of Columbia subsequently dismissed the case.