Rule of Law

Trump’s Portland crackdown is controversial. The man spearheading it might be doing so illegally

In Wednesday’s Washington Post, Nick Miroff and Matt Zapotosky dig into the Trump administration’s highly controversial — and in some cases legally questionable — use of the Department of Homeland Security to quell demonstrations in places like Portland, Ore.:

In Portland, Washington and other U.S. cities shaken by protests in recent months, the Trump administration has leaned on the considerable authority and assets of the Department of Homeland Security — an agency formed to prevent another Sept. 11, 2001, attack — to spearhead the federal response.
Images of militarized Border Patrol agents clubbing protesters and stuffing them into unmarked vehicles have alarmed civil liberties advocates and administration critics, and the displays of government power echo tactics long associated with authoritarian rule.
Legal analysts say that while the department has broad authority to enforce federal laws, officers’ actions — especially in Portland, Ore. — seemed to be pushing the boundaries and pulling DHS into a domestic policing role.

Tom Ridge, who served as the first Homeland Security secretary under George W. Bush, said Tuesday that DHS “was not established to be the president’s personal militia,” and added, “It would be a cold day in hell before I would consent to a unilateral, uninvited intervention into one of my cities.” Former DHS official Paul Rosenzweig called the operation, which has come to be known as Operation Legend, “lawful but awful.”

What’s also problematic here — and perhaps even illegal — is the man calling the shots. This controversial effort is being spearheaded not by a duly confirmed DHS secretary, but by acting secretary Chad Wolf, whose long-running service in that role runs afoul of the law, according to experts.

Trump has made use of acting Cabinet officials in ways with no apparent precedent. As I wrote back in February, by that point he had had acting officials in Cabinet-level jobs for more than 2,700 combined days across 22 jobs — about 1 out of every 9 total days. That compared to about 1 out of every 29 for President Barack Obama. (“I like ‘acting’ because I can move so quickly,” he told CBS’s “Face The Nation” last year, adding, “It gives me more flexibility.”)

And Trump exploited acting officials at DHS like nowhere else. The agency has been run by an acting secretary — first Kevin McAleenan and now Wolf — for the past 469 days. That’s equal to more than 15 months and nearly 37 percent of his entire presidency. In that entire time, Trump has failed to even nominate a permanent DHS secretary for the Senate’s consideration.

In other words, the man running this controversial effort has not been signed off on for his current role (Wolf was confirmed to be an undersecretary at DHS). The lack of confirmation for his current position is a problem for two reasons.

One is that the Federal Vacancies Reform Act only allows acting officials to serve for 210 days after a vacancy is declared or a new permanent head is nominated and rejected. Wolf has served 251 days. Because a new nomination hasn’t been announced, much less rejected, the clock has never reset.

And University of Michigan law professor Nina Mendelson, an expert on federal vacancies, says that 210-day window was violated even before Wolf was appointed, given that McAleenan served more than 210 days himself as acting secretary.

“The language of the Federal Vacancies Reform Act is very clear,” Mendelson said. “It’s 210 days, beginning on the date the vacancy occurs, so an acting secretary cannot serve legally past that time.”

Mendelson noted that there is a separate statute governing the line of succession at DHS, which the Trump administration has sought to exploit to install unconfirmed hard-liners in key jobs. But it has never been tested against the Federal Vacancies Reform Act. And even setting that aside, she says that Wolf’s continued service is also unconstitutional, given that the Constitution states that the president “shall nominate, and by and with the Advice and Consent of the Senate,” such officials — which Trump has made no effort to do.

“The issue has not gone to the courts as yet, but such lengthy service also in my view violates the Constitution,” Mendelson said. “The Constitution requires confirmation of Cabinet officials. Empowering someone not confirmed for the job to run the agency for such a lengthy period of time violates that requirement.”

Democrats have argued from the start that Wolf’s elevation was illegal — and not just because of the 210-day window. McAleenan adjusted the DHS’s order of succession, but Democrats argued that McAleenan himself didn’t qualify to be acting secretary under the previous line of succession, which would render his decisions illegitimate.

Brianne J. Gorod, chief counsel of the Constitutional Accountability Center, said Wolf “is a prime example of this administration’s unlawful use of acting officials.”

“To start, there is reason to think that Wolf never validly became acting secretary in the first place,” Gorod said. “But even if he did, the FVRA imposes strict time limits on how long offices can be filled by an acting official, precisely to guard against evasions of the Senate advice-and-consent role. And the period during which the office of DHS secretary can be filled by an acting officer under the FVRA has long since ended.”

The question from there is what it means, practically speaking. And there is some reason to believe this could actually impact any legal cases resulting from the use of DHS personnel in cities such as Portland.

In March, for instance, a federal judge in Washington, D.C., suspended asylum policies put forward by acting U.S. Citizenship and Immigration Services director Ken Cuccinelli, ruling that his appointment had violated the FVRA. Cuccinelli has also served effectively as Wolf’s top deputy despite never being confirmed. The case is on appeal in the D.C. Circuit.

Perhaps more important is a 2017 Supreme Court decision. In that decision, the court affirmed a lower court’s decision voiding an action taken by Lafe Solomon, who served as acting general counsel for the National Labor Relations Board, because he was found to be illegally serving in that role. The issue there was not the 210-day window, but rather Solomon illegally continuing to serve in an acting capacity even after Obama formally nominated him for the job, which the FVRA prohibits.

“Once the President submitted his nomination to fill that position in a permanent capacity, subsection (b)(1) prohibited [Solomon] from continuing his acting service,” the Supreme Court rules. “This does not mean that the duties of general counsel to the NLRB needed to go unperformed; the President could have appointed another person to serve as the acting officer in Solomon’s place. … The President, however, did not do so, and Solomon’s continued service violated the FVRA. Accordingly, the judgment of the Court of Appeals is affirmed.”

Whether this might factor into any legal challenges to the DHS’s actions in Portland or elsewhere remains to be seen. And politically speaking, such cases might be rendered moot, given the fast-approaching election.

But it’s worth emphasizing not just the controversial nature of the actions, but the legally suspect authority of the man carrying them out on behalf of a president who is pushing hard for such actions. Trump likes this setup precisely because it provides him “flexibility” — i.e. it lets him operate through officials who haven’t been signed off on, which makes them more accountable to him than to lawmakers. (Wolf at one point was berated by GOP Sen. John Neely Kennedy of Louisiana for failing to provide basic answers about the novel coronavirus outbreak.)

Having Wolf making such calls only compounds the myriad issues involved.