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DHS issues statement regarding HSA/FVRA challenges to Acting Secretary's authority

  1. Date Announced

    Nov. 17, 2020

    DHS releases press statement in response to "recent challenges to Acting Secretary Wolf's authority," asserting that Acting Secretaries Wolf and McAleenan exercised lawful authority to issue various agency actions subject to legal challenge.

    The GAO and several courts have concluded that various Trump Administration "acting" officials - including Acting Secretaries McAleenan and Wolf - hold their positions in violation of the Federal Vacancies Reform Act (FVRA) and/or Homeland Security Act (HSA). These cases conclude that Secretary Nielsen failed to properly designate an order of succession under the HSA (6 U.S.C. 113(g)(2)) for a vacancy arising from the resignation of the Secretary. Accordingly, Acting Secretary McAleenan - then CBP Commissioner - was unlawfully elevated to that office in April 2019. Because Acting Secretary McAleenan served in violation of the HSA, his subsequent amendment to the order of succession, installing Acting Secretary Wolf upon his resignation in November 2019, has also been found invalid.

    The release includes three attachments purporting to cure any defects in the order of succession and ratify the Acting Secretaries' prior actions:

    1. November 14, 2020 order by FEMA Administrator Peter Gaynor, purporting to designate a revised order of succession under 6 U.S.C. 113(g)(2) and
    2. November 16, 2020 order by Acting Secretary Wolf, ratifying his own actions taken prior to November 13, 2020
    3. November 16, 2020 order by Acting Secretary Wolf, ratifying actions taken by Acting Secretary McAleenan and USCIS Deputy Director Joseph Edlow

    [ID #1169]

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  2. Effective Date of Change

    Nov. 17, 2020
Status: Final/Actual
Type of Action: Agency Directive
Subject Matter: Enforcement Humanitarian
Agencies Affected: USCIS DHS

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