page_title: 2019–2020 Department of Homeland Security appointment disputes
section_title: Secretary and Deputy Secretary appointments
hierarchical_section_title: 2019–2020 Department of Homeland Security appointment disputes / Controversy / Secretary and Deputy Secretary appointments
caption_attribution_description: English: Today, CBP Commissioner Kevin McAleenan was sworn-in to lead DHS as the Acting Secretary. The ceremony took place at the new DHS Headquarters at St. Elizabeth’s.
context_page_description: Beginning in 2019, multiple appointments of acting officials in the United States Department of Homeland Security had their legality questioned, on the basis of whether the appointments were legal under the Federal Vacancies Reform Act of 1998 and the Homeland Security Act of 2002.
  The disputed appointments were those of Kevin McAleenan and Chad Wolf as Acting Secretary of Homeland Security, and Ken Cuccinelli as Senior Official Performing the Duties of both the Deputy Secretary of Homeland Security and the Director of United States Citizenship and Immigration Services. The dispute on the Secretary and Deputy Secretary appointments centered on the fact that the issued text of an amendment to the order of succession deviated from the intention of then-Secretary Kirstjen Nielsen, placing a different person than expected next in line. The dispute on the USCIS appointment centered on whether a newly created Principal Deputy Director position was validly the "first assistant" to the Director under the Federal Vacancies Reform Act.
context_section_description: On November 15, 2019, House Democrats Bennie Thompson and Carolyn Maloney requested that Comptroller General of the United States Gene Dodaro review the legality of Wolf's appointment on the basis that former Acting Secretary McAleenan did not have authority to change the department's line of succession, asserting that former Secretary Nielsen had not properly placed McAleenan first in the line of succession before resigning and that McAleenan's change came after the 210-day limit to his authority had expired.
  
  On August 14, 2020, the Government Accountability Office released a finding that McAleenan, Wolf, and Cuccinelli had been appointed improperly, noting that:
  Upon Secretary Kirstjen Nielsen's resignation on April 10, 2019, the official who assumed the title of Acting Secretary had not been designated in the order of succession to serve upon the Secretary's resignation. Because the incorrect official assumed the title of Acting Secretary at that time, subsequent amendments to the order of succession made by that official were invalid and officials who assumed their positions under such amendments, including Chad Wolf and Kenneth Cuccinelli, were named by reference to an invalid order of succession.
  Dodaro referred the matter to Department of Homeland Security Inspector General Joseph V. Cuffari to review the questions of who should be serving in these positions, the legality of other actions taken by McAleenan, Wolf, and Cuccinelli.  Under the line of succession found valid by GAO, the Acting Secretary as of August 2020 would be Federal Emergency Management Agency Administrator Pete Gaynor.  Although GAO findings are not legally binding, it was expected to affect several pending court cases, including Wolf v. Vidal, where plaintiffs had argued that rules issued by McAleenan, Wolf, and Cuccinelli were void because they had been improperly appointed.
  On August 17, the Department of Homeland Security's Acting General Counsel issued a statement rejecting the GAO's finding, saying that Nielsen had in fact legally appointment McAleenan as Acting Secretary.  To support this they stated the fact that she had personally sworn him in, and announced in a public email that he was the incoming Acting Secretary, as evidence of her intention.  They also pointed to a preliminary memorandum from the DHS General Counsel to Nielsen that, unlike the text of the actual DHS Delegation, included ambiguous language.  They also criticized the timing of the funding, noting that GAO had taken over eight months to issue the finding, and released in just 80 days prior to the 2020 United States elections, and asserted that the validity of the appointment was outside the GAO's jurisdiction because it was made uneder the HSA and not the FVRA.
  On August 21, GAO declined to retract or amend their findings, saying that DHS had not provided any evidence of material errors of fact or law in the finding, and that all their points had already been considered in the finding.
  On August 25, President Trump announced that he would nominate Wolf to be confirmed by the Senate as the permanent Secretary of Homeland Security.
caption: Kevin McAleenan being sworn in as DHS Acting Secretary by Kirstjen Nielsen in April 2019.  DHS used this photograph to argue that Nielsen had intended to and had legally placed McAleenan next in line to become Acting Secretary, validating the later appointments of Wolf and Cuccinelli.[14]
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