Make the Road New York v. Wolf
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 July 2019, the Department’s purported Acting Secretary, Kevin McAleenan, issued an order significantly expanding the use of the expedited removal system—a deportation process with few due process protections. Under this new order, expedited removal procedures will apply to all individuals who cannot prove that they have resided in the United States for two or more years. This new order broadening the scope of eligibility for expedited removal threatens countless communities across the United States.
On behalf of their members, immigrant rights organizations challenged the legality of McAleenan’s order in court, seeking a preliminary injunction. 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 limited the use of acting officials. Next, we explain why Kevin McAleenan never validly became the Acting Secretary of Homeland Security. Under the FVRA and the statutes governing the Department, McAleenan was not eligible to become the Acting Secretary when he assumed that position unlawfully, and the government’s defense of his tenure does not stand up to scrutiny.
Finally, our brief describes the consequences of McAleenan’s unlawful tenure. Because McAleenan never lawfully held the position of Acting Secretary, the Administrative Procedure Act requires that his order expanding the scope of expedited removal be vacated by the courts as unlawful. In addition, because of the FVRA’s penalties for illegal appointments, McAleenan’s order was void from the outset and cannot be ratified after the fact, even by a properly serving Secretary or Acting Secretary.
October 20, 2020
CAC files amicus curiae briefD.D.C. Amicus Br.