Rule of Law

Don’t Shoot Portland v. Wolf

In Don’t Shoot Portland v. Wolf, the U.S. District Court for the District of Columbia is considering a challenge to actions taken by the purported Acting Secretary of Homeland Security to quell peaceful demonstrations in Portland, Oregon, using federal officers.

Case Summary

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 since April 2019.  In early July 2020, 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 describes 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 explain 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 describes the consequences of Wolf’s unlawful tenure.  Because Wolf never legally held the position of Acting Secretary, the Administrative Procedure Act requires 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 apply here, Wolf’s order was void from the outset and cannot be ratified after the fact.

Case Timeline

More from Rule of Law

Rule of Law
August 3, 2021

The Problem with DOJ’s Rule Proposal on Grand Jury Materials

[caption id="attachment_14911" align="alignnone" width="1000"] Recently, the Department of Justice (DOJ) sent a letter to the Advisory Committee on...
By: Charles Miller
Rule of Law
July 28, 2021

Originalism Watch, Sixth Circuit Edition Part II: Judge Thapar Calls for the Supreme Court to “Breath[e] New Life” Into the Nondelegation Doctrine

Back in April, my colleague, David Gans, observed that Sixth Circuit Judge John Bush’s concurrence...
By: Miriam Becker-Cohen
Rule of Law
July 27, 2021

RELEASE: CAC President Commends 1/6 Committee for Beginning Important Work, Urges Accountability

WASHINGTON – As the bipartisan Jan. 6 Select Committee holds its first hearing, Constitutional Accountability Center President Elizabeth Wydra issued the following statement and is available...
By: Elizabeth B. Wydra
Rule of Law
July 22, 2021

OP-ED: The One Area Where Supreme Court Jurisprudence Is Actually Improving Thanks to Originalism

For decades, the Supreme Court has repeatedly deferred to the police when judging the validity...
By: David H. Gans
Rule of Law
July 27, 2021

#PurpleChairChat: Supporting the Next Generation of Constitutional Progressives

CAC’s interns, Dylan Hosmer-Quint of Harvard Law, and Gilbert Orbea and Saja Spearman-Weaver of Yale Law, discuss the great work they have...
By: Elizabeth B. Wydra
Rule of Law
July 16, 2021

Rent regulations are not unconstitutional

New York Daily News
Some New York City landlords are pushing for an expansive misreading of the Constitution to serve their...
By: Elizabeth B. Wydra, By Christopher Serkin