A government watchdog report published Friday found that the appointments of two top Department of Homeland Security (DHS) officials who have been at the center of the Trump administration's immigration policies were invalid.
The Government Accountability Office report said acting DHS Secretary Chad Wolf and Senior Official Performing the Duties of Deputy Secretary Ken Cuccinelli were "ineligible to serve" in those positions because of laws that dictate the order of succession.
In a statement, DHS said it wholeheartedly disagreed with the "GAO’s baseless report" and planned to issue a formal response.
The issues stem from the resignation of former DHS Secretary Kirstjen Nielsen in April 2019. Under the Homeland Security Act of 2002 (HSA) the Director of the Cybersecurity and Infrastructure Security Agency (CISA) should've assumed the role. Instead, the report said, because Kevin McAleenan, the then Commissioner of Customs and Border Protection (CBP), was appointed the subsequent designations for Wolf and Cuccinelli were invalid.
The Trump administration has been criticized for putting high-level officials on a temporary or acting basis. Nielsen was the last Senate-confirmed secretary at DHS.
The GAO did not address the legality of the actions taken by Wolf or Cuccinelli in their invalid positions. Their appointments and the legality of policies they've pushed through have been criticized by advocates before who said they violated federal laws governing selections to agency positions.
During the period he was acting USCIS director, Cuccinelli shepherded restrictive immigration policies, such as denying permanent residency to people who used or were likely to use public benefits known as the public charge rule. Cuccinelli also reduced the time immigrants had to consult with an attorney before being interviewed by an asylum officer from up to three days to one day.
When speaking to NPR about the public charge rule, Cuccinelli revised Emma Lazarus’s poem on the Statue of Liberty to “Give me your tired and your poor who can stand on their own two feet, and who will not become a public charge."
Rep. Bennie Thompson, chair of the Committee on Homeland Security, in a statement said the report painted "a disturbing picture of the Trump Administration playing fast and loose by bypassing the Senate confirmation process to install ideologues."
Wolf should immediately step down and return to his Senate-confirmed position, Thompson said.
“As for Mr. Cuccinelli, a political pundit plucked by the president to serve in multiple senior roles at DHS for which he is woefully unqualified, he should immediately resign from the federal government and retire his unprofessional official Twitter account,” Thompson said.
In March, a federal judge in Washington, DC, ruled that Cuccinelli, who was then the head of US Citizenship and Immigration Services, had not been lawfully appointed to his job and a policy directive speeding up initial screenings of immigrants seeking asylum during his tenure should be voided.
On May 15, the administration said they would be appealing Judge Randolph Moss’ ruling. But late Thursday, before the GAO report was published, the Trump administration filed court documents dismissing their appeal.
Anne Harkavy, executive director of Democracy Forward, one of the groups that brought the lawsuit against the administration, in a statement said the government retreated from its legal fight because it knows the law is not on its side.
"This is a victory for the rule of law and for the asylum seekers and immigrants hurt by the administration's harmful policies," Harkavy said.
Manoj Govindaiah, litigation director for RAICES, which provides legal services to immigrants, in a statement said the policies Cuccinelli enacted should be struck down immediately. RAICES was also involved in the lawsuit.
"The decision not to pursue this appeal is a significant victory," Govindaiah said. "The Trump administration has time and again appointed 'acting' officials to go around the Senate’s critical confirmation process, an attempt to circumvent its constitutional role."