Federal judge rules acting DHS head Chad Wolf unlawfully appointed, invalidates DACA suspension

[mahatmakanejeeves]

Source: NBC, via Joe.My.God.

Federal judge rules acting DHS head Chad Wolf unlawfully appointed, invalidates DACA suspension

"This is really a hopeful day for a lot of young people across the country," said Karen Tumlin, a lawyer in the case and director of the Los Angeles-based Justice Action Center.

Nov. 14, 2020, 5:21 PM EST
By Dennis Romero

A federal judge in New York City on Saturday said Chad Wolf has not been acting lawfully as the chief of Homeland Security and that, as such, his suspension of protections for a class of migrants brought to the United States illegally as children is invalid.

The U.S. Supreme Court ruled in June that the Trump administration wrongly tried to shut down protections under the Obama-era legislation known as DACA, or Deferred Action for Childhood Arrivals. On July 28, Wolf nonetheless suspended DACA pending review.

Homeland Security did not immediately respond to a request for comment.

{snip}



Read more: https://www.nbcnews.com/news/us-news/federal-judge-rules-acting-dhs-head-chad-wolf-unlawfully-appointed-n1247848

---

Hat tip, Joe.My.God.

Federal Court Rules Acting DHS Head Was Unlawfully Appointed, Invalidates His Action On DACA Protections

https://www.joemygod.com/2020/11/federal-court-rules-acting-dhs-head-was-unlawfully-appointed-invalidates-his-action-on-daca-protections/

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Another hat tip, Popehat

I'm sorry, but I've hit the drinking part of the day. I can link to these, but beyond that, you're on your own.

And I'm afraid that until Trump is gone, every part of the day will be the drinking part of the day.

Popehat Retweeted

In a 31-page ruling, Judge Garaufis (EDNY) has granted summary judgment against the Trump administration's post-#SCOTUS effort to suspend #DACA — holding that
@DHS_Wolf
was *not* lawfully appointed, and so lacked the authority to issue his July 28 memo:

https://justsecurity.org/wp-content/uploads/2020/11/Garaufis.DACA_.decision.pdf

Link to tweet

[mobeau69]

1. "The best lawyers." LOL!

[House of Roberts]

2. So Chad Wolf was not lawfully appointed?

Please tell me this isn't a harbinger for how courts will rule against Biden's 'acting' appointees.

[leftieNanner]

5. It's not just that Wolf was an "acting" person

But that he was not brought up through the proper chain of command (if I remember correctly). There is a seniority system and The Orange One stuck him in there instead of the person who should have assumed the position.

Please correct me if I'm wrong DU!

[2naSalit]

8. I think that's so in some cases with appointees...

And this may apply to Wolf as well as the length of time an "acting" department head or Cabinet member which is like a year but I think there are limitations on some of the authority when it comes to and "acting" appointee. All of those conditions may apply.

[Warpy]

22. Plus, he overstayed his welcome

Acting department heads have a finite term. His expired some time ago.

Dumdum preferred acting department heads so he could fire them at will. He was supposed to make permanent appointments who would then be either confirmed or rejected by the Senate. He didn't want to do that because either the acting head was unacceptable or he knew he would have to convince permanent heads to submit resignations instead of simply firing them.

It's just another example of how completely lawless this administration has been.

[kurtcagle]

10. Probably not

There's an interesting legal conundrum that Mitch McConnell is in the center of. Trump abused the acting head policy by never actually submitting anyone to McConnell because the majority leader would then have to hold hearings on the nominees (which would have been bad political press, because the nominees were NOT in general competent for their job). Biden will be submitting his candidates to McConnell, who then MUST hold hearings, or the candidate in question will automatically be appointed after 90 days (I believe). McConnell will have at best a razor-thin majority in the Senate (if only one of the Democrats wins) or will lose control of the Senate (if both win). He's also going into an election cycle in 2022 where the Republicans are vulnerable, and this doesn't rule out a defector in the Senate (my guess would be Murkowski) switching to the Democratic side. This is going to make it a lot harder for him to obstruct appointments.

From the legal side, because Trump failed to submit candidates to the Senate for review, he is effectively in violation of the constitution in his appointments. Biden WILL be submitting candidates, so this won't be an issue. It also means that a significant portion of the EOs that Trump wrote will be found non-binding precisely because his appointments were not reviewed.

[CaliforniaPeggy]

11. Thank you for this very concise, and accurate description of the situation.

I really appreciate it.

[groundloop]

14. So ..... If Biden submits a name and Mitch refuses a vote can that person be an "Acting Head" ?

[murielm99]

17. I would like to repeat your question.

What happens then?

[kurtcagle]

20. McConnell can still bottle up the works

The nomination has to get out of committee. This was a problem that Obama faced with McConnell before, where appointments remained locked up in committee. However, for most appointments, these are still public affairs - and they put a different spin on things.

If a nomination is in committee, then it is not (I believe) subject to the same Acting status as one who was never submitted - that is to say, the nominee is still a candidate, and can take the role on a temporary basis until he or she is specifically dismissed. I suspect at some point if this does become a problem it will be pushed before the supreme court. Court precedence is fairly clear here: a president has historically been accorded his choice of cabinet, and the inability of Congress to either approve or disapprove of such an appointment is not within the purview of the Executive branch to change.

This isn't ideal, but ironically, Trump's decisions (and the limitations that come with Acting status that resulted from them) place a real onus on the court to settle what is a fundamentally constitutional question: does Congress have the authority to keep the Executive branch from functioning?

[onenote]

26. Generally speaking, no.

See https://fas.org/sgp/crs/misc/R44997.pdf at pages 11-12:

"As a general rule, if the President nominates a person to the vacant position, that person “may not serve as an acting officer” for that position....There is an exception to this limitation: a person who is nominated to an office may serve as acting officer for that office if that person is in a “first assistant” position to that office and either (1) has served in that position for at least 90 days113 or (2) was appointed to that position through the advice-and-consent process."

[onenote]

23. Almost nothing in the "probably not" post is correct.

Sorry, but I don't know where you're getting your information, but it's simply wrong. Almost all of it.
First, there is no constitutional obligation to submit a nomination to fill a vacancy in a cabinet post, no constitutional obligation to hold hearings on a nomination, and no statutory 90 day rule for "automatic" appointments.

The filling of cabinet-level vacancies is governed by the Federal Vacancies Reform Act, which limits who can be named to fill a vacancy and for how long. A good summary of the Vacancies Act can be found here: https://fas.org/sgp/crs/misc/R44997.pdf

While the FVRA is the default standard for filling vacancies, it expressly gives way if the statute governing an agency provides a different set of rules for filling vacancies. The Homeland Security Act contains such a separate provision and it is the Trump administration's convoluted attempts to get around the specific "order of succession" that had been established pursuant to that law that caused Wolf's ascension to "Acting" Homeland Security secretary -- and the actions that he took while in that position -- to be unlawful. It is a relatively unique situation and does not suggest that the vast majority (if, indeed any) of Trump's other appointments of "acting" agency heads was unlawful or that any of the actions taken by those acting heads can or will be challenged. A copy of the court decision regarding Wolf can be found here: https://www.justsecurity.org/wp-content/uploads/2020/11/Garaufis.DACA_.decision.pdf

If President Biden follows the FVRA, his appointments will be fine. But he faces a challenge because most of the people in line to be named the "acting" head of an agency will be people who were appointed to their current positions by Trump or by Trump's appointees.

[underpants]

3. Man, Trump is just hitting on all legal cylinders right now

[Hortensis]

4. :) Wonderful news for so many. I love Judge Garaufis, whoever he or she is.

He, and a Bill Clinton appointee at the recommendation of Dan Monynihan and Chuck Schumer. His record shows he's a liberal justice. and this isn't his first decision for DACA recipients.

[Ford_Prefect]

21. He's a character:Garaufis served nine years as counsel to Queens Borough President Claire Shulman

Nicholas George Garaufis (born September 28, 1948) is a Senior United States District Judge of the United States District Court for the Eastern District of New York.


Deferred Action for Childhood Arrivals
In 2016, Martín Batalla Vidal, a recipient of Deferred Action for Childhood Arrivals (DACA), filed a federal lawsuit in the Eastern District of New York challenging the Department of Homeland Security (DHS)’s decision to revoke his work permit in connection with the nationwide injunction issued by the Southern District of Texas.[12] The Texas case sought to block the implementation of the Deferred Action for Parents of Americans Lawful Permanent Residents (DAPA) and an expansion of DACA.[12] On September 29, 2016, the advocacy organization Make the Road New York (MRNY) joined Batalla Vidal's lawsuit.[12]

On February 13, 2018, Garaufis issued a nationwide preliminary injunction enjoining rescission of the DACA program.[13] Garaufis found that Plaintiffs were entitled to a preliminary injunction.[13] The government appealed Garaufis's decision to the Second Circuit, which heard oral argument on January 25, 2019.[14]

https://en.wikipedia.org/wiki/Nicholas_Garaufis

[Hortensis]

25. Since my search last night, some things have moved up on

a new one. People are interested. I just read a bit of a transcript for a case, and it does suggest he could be something of a character. Certainly not a boring man in a regular job. And twitter.

Link to tweet

[Mme. Defarge]

6. Can he now be prosecuted

for illegally sending federal troops that harmed innocent protesters, into my city?

[C_U_L8R]

7. Aren't they all unlawfully appointed?

Roll it all back. Invalidate every heinous act.

[onenote]

24. No. The Homeland Security situation differs from most.

In most instances, filling vacancies is governed by the Federal Vacancies Reform Act. However, the FVRA allows for a different standard for filling vacancies if the statute governing an agency expressly addresses that issue. The Homeland Security Act is such a statute and Wolf's appointment could be challenged because it was in violation of the order or succession spelled out in the Homeland Security Act and in orders adopted pursuant to that Act. This is explained in the court decision: https://www.justsecurity.org/wp-content/uploads/2020/11/Garaufis.DACA_.decision.pdf

In those situations where the filling of a vacancy is governed by the FVRA, there are three options for naming an "acting" cabinet head when a vacancy occurs: it can be the "first assistant" to the vacant office (typically the deputy secretary); it can be anyone who currently serves in an executive branch office for which they were confirmed by the Senate; or it can be a someone from within the agency where the vacancy occurred provided they meet certain tenure and seniority requirements. The FVRA is summarized and explained here: https://fas.org/sgp/crs/misc/R44997.pdf

The hurdle this places on President Biden is that anyone currently serving as a "first assistant" or pursuant to Senate confirmation is almost certainly a Trump appointee. The trick will be finding a senior career official who isn't loyal to Trump.

[BumRushDaShow]

9. "I'm sorry, but I've hit the drinking part of the day."

One of my sisters texted me yesterday to say her hubby went to their closest state store and it was mobbed. That prompted me to run to one near me to get a few things and the business was pretty "brisk". I think many around here are preparing for some kind of increasing restrictions just short of the full lockdown that we had last March due to the covid spike here in PA and in the Philly area..

This guy is illegally in that position and even if he were "legal", he is well past the mandatory cutoff for "Acting" at that level. So every single thing he has signed should be unlawful and invalid.

All I can say is that these guys just don't give up and I can't wait until January 20, 2021 at 12:01 pm.

[klook]

12. Tremendous news!

The sabotage of the Dreamers is one of the most despicable acts by the Trump misadministration.

[warmfeet]

13. K and R.

[KY_EnviroGuy]

15. The really sad part is that much damage probably has already been done.

That's the way Republicans roll.

They disregard all laws, regulations and norms to do what they damn well please while in power, then just say "aww shucks".

The GOP needs to be destroyed for the sake of our nation, and we need better laws in place to prevent this sort of bullshit in the future.....


KY....... .........

[Ford_Prefect]

16. Can we take this to mean that any order, directive, or executive action taken by Wolf

was likewise illegal? Does this mean the department acted outside the law during enforcement and other activities which Wolf and his subordinates initiated, directed, or which were overseen by them?

OH MY indeed!

[murielm99]

18. I hit the drinking part of the day

pretty often myself. This will have to end soon. I am putting on weight.

[marble falls]

19. I'd have loved to have been in the White House when Trump heard that. bet his face matched ...

... that new gray hair.