A federal judge ruled Saturday that President Trump’s nominee to head the Department of Homeland Security has been illegally working in his position as acting secretary over the past 12 months.
Judge George Garaufis of the U.S. District Court for the Eastern District of New York wrote that Wolf’s illegitimate appointment in November 2019 meant a rule he advanced this summer to cripple the Obama-era Deferred Action for Childhood Arrivals program was invalid.
“Wolf was not lawfully serving as Acting Secretary of Homeland Security under the HSA [Homeland Security Act] when he issued the Wolf Memorandum,” wrote Garaufis, who was appointed by former President Bill Clinton.
The Wolf memo only allowed the hundreds of thousands of DACA recipients, or children who were brought illegally to the United States who meet certain criteria, to renew their protections from deportation and work permits for one year instead of the normal two years. Trump’s former Attorney General Jeff Sessions attempted to rescind the program entirely early on in the administration, though the Supreme Court blocked the move.
The decision is the latest instance of a federal judge or government office concluding that the White House broke the law by putting Wolf in his position. The move also complicates the Trump administration’s renewed efforts to get Wolf confirmed as secretary before Trump leaves office Jan. 20, 2021.
In August, the Government Accountability Office said Wolf was technically not the next person in line to have taken over when Kevin McAleenan left his post as acting secretary in Fall 2019.
Wolf wrote GAO General Counsel Thomas Armstrong and asked his office to reconsider its decision, calling it “fundamentally erroneous” that they had been accused of violating the Vacancies Reform Act, which outlines the order of succession procedures. Wolf argued that McAleenan’s predecessor, Kirstjen Nielsen, had reordered the line of succession a day before she left DHS last spring, therefore allowing both men to take over down the road. GAO refused to amend its conclusion.
Wolf is the organization’s fifth leader since Trump took office in 2017. He was nominated to be undersecretary at the department’s Office of Strategy, Policy, and Plans, but has yet to be confirmed.
In March, a federal district court judge in Washington ruled that senior official performing the duties of DHS deputy secretary, Ken Cuccinelli, had not met the legal requirements for his post at DHS.
Garaufis said the court will hold conferences to determine how to walk back the DACA policy.