Federal judge rules acting DHS secretary unlawfully appointed, invalidating DACA suspension

Source: The Hill | November 14, 2020 | Jordan Williams

A federal judge ruled on Saturday that acting Department of Homeland Security (DHS) Secretary Chad Wolf was unlawfully appointed, thus invalidating his suspension of the Deferred Action on Childhood Arrivals (DACA) program.

NBC News reported that Judge Nicholas Garafus ruled that “Wolf was not lawfully serving as Acting Secretary of Homeland Security under the HSA [Homeland Security Act] when he issued the Wolf Memorandum” suspending the Obama-era program.

Wolf issued a memorandum in July of this year which he said the Department would not accept new DACA requests while a review of the program was ongoing, NBC noted. The memo came after the Supreme Court ruled in June that the administration failed to give adequate justification for terminating the program. 

Wolf was appointed to serve as acting director of DHS in November 2019, taking over the post from Kevin McAleenan, who had been leading Customs and Border Protection. Wolf was formally nominated to the role in August, but the Senate has yet to confirm him. 

The Government Accountability Office found in August that McAleenan had not been designated in the order of succession to replace former Homeland Security Secretary Kristjen Nielsen and therefore could not legally alter the order of succession at DHS.

“Based on the plain text of the operative order of succession,” Garaufis wrote according to NBC, “neither Mr. McAleenan nor, in turn, Mr. Wolf, possessed statutory authority to serve as Acting Secretary. Therefore the Wolf Memorandum was not an exercise of legal authority.”

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