New York v. Department of Homeland Security; Make the Road NY v. Cuccinelli
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 August 2019, the Department’s purported Acting Secretary, Kevin McAleenan, approved a regulation altering the criteria for admission into the United States by redefining the longstanding definition of a “public charge.” Under the new definition, a “public charge” is no longer someone who is primarily dependent on the government for subsistence, but any individual who is likely at any point in his or her lifetime to use even a modest amount of government benefits. This new rule is meant to discourage immigrants from utilizing any government benefits and to penalize them for receipt of needed financial and medical assistance.
A number of states and immigrant advocacy organizations challenged the legality of the Department’s rule in court. 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 the public charge rule he authorized be vacated by the courts as unlawful. In addition, because of the FVRA’s penalties for illegal appointments, the public charge rule was void from the outset and cannot be ratified after the fact, even by a properly serving Secretary or Acting Secretary.
November 3, 2020
CAC files amicus curiae briefS.D.N.Y. Amicus Br.