A federal judge ruled Saturday that the acting secretary of the Department of Homeland Security, Chad Wolf, had no authority to stop new filings for the Obama-era DACA (Deferred Action for Childhood Arrivals) program in July.
That judge, Nicholas Garaufis of the U.S. District Court for the Eastern District of New York, ruled that Wolf’s memo suspending new applicants for the immigration program was invalid because it was not included in a decision that reflected the president’s restrictions Legally appointed to his position was Donald Trump’s pattern of relying heavily on appointed incumbent officials who have not been ratified by the Senate to establish policy.
It also raises questions about whether he can put in place a permanent policy in the final months of his presidency through current or new incumbent staff before President-elect Joe Biden takes office in January.
Garaufis said Saturday that Trump had not put Wolf – who has served as acting secretary since November 2019 and has not been ratified by the Senate – at the head of his federal agency under the law.
“DHS [the Department of Homeland Security] has not followed the legal order of succession, ”wrote Garaufis, a representative for President Bill Clinton. “Therefore, the measures were taken by alleged acting secretaries who were not properly in their roles according to the legal succession, without legal authority.”
The finding coincided with the Government Accountability Office’s allegation in August that Wolf and another DHS official were not legitimate officials because they were appointed by another official who himself had not been properly appointed to his position due to a paperwork error.
The verdict means that Wolf’s July 28 memo, listing new applications for the DACA program that includes 640,000 immigrants known as “dreamers” who were illegally brought to the United States as children, live and work in the United States, is effective suspended have been classified as invalid. Wolf’s memo cut the extension period for protective measures under the program from two years to one year.
Politico’s Josh Gerstein has explained who is likely to benefit most from Garaufis’ decision:
The most immediate beneficiaries of the court ruling are likely to be immigrants who are eligible for DACA but who did not apply before the Trump administration dropped the applications in September 2017. The decision could also lead the DHS to restore a DACA benefit that the administration has largely abandoned at the same time: the ability for dreamers to leave the country and return without losing their quasi-legal status and work permits.
However, as the Washington Post notes, the ruling did not immediately remove the Trump administration’s changes to the DACA program. Instead, the government and the groups that brought the case, including the National Immigration Law Center, must meet now to discuss the steps. And there are other related cases pending that could distort this latest decision.
The reasons the memo was found invalid underscores the myopia of Trump’s style of using temporary appointments for government business, which he prefers because of the speed and flexibility it offers.
Trump’s confidence in incumbent officials is a break with the past
According to the Brookings Institution, Trump has decided to appoint incumbent officials across the administration “at a pace far exceeding his predecessors.”
Proponents of balanced government have criticized Trump’s use of temporary appointments to circumvent Senate confirmation as an abuse of executive power and as a way to appoint ideologically extreme or loyal officials without legislative input.
For example, Trump appointed Anthony Tata to a senior civilian position in the Pentagon through a temporary role after his nomination for a Senate-approved position was failed. Tata withdrew from the Senate confirmation process after it was discovered that he had made major comments in the past, such as labeling former President Barack Obama a “terrorist leader”.
But aside from placing key positions in those unable to pass Senate control, Trump has used acting positions to evade laws and norms for appointing officials to departments. According to an analysis by Just Security in September, there are at least 15 other officers in 12 executive departments – besides Wolf – who are illegitimate in their positions. One reason for this is that the Trump administration has persistently disregarded the timing restrictions on temporary appointments that require Senate confirmation under federal vacancy reform law.
As the end of Trump’s tenure nears, there are signs that he could use the appointment of more temps to sow discord, slow the transition, or try to implement a definitive policy before Biden’s tenure begins.
For example, Trump appointed three new high-ranking officials at the Pentagon last week – mostly to replace Secretary of Defense Mark Esper, whom he tweeted on Monday, with acting Secretary of Defense Christopher Miller.
Experts told Vox’s Alex Ward that they suspect that “after the election, Trump finally had a chance to clean the house at the Pentagon and that he is hiring people more amenable to his needs to finally get some of the policies of the Esper- meet. The Pentagon had pushed back – for example, to withdraw all remaining US troops from Afghanistan before Christmas. “
Relocations have also been made in other federal departments: “Last week, top officials from the agencies overseeing the safety of the US nuclear infrastructure, the Justice Department’s electoral fraud department, US foreign aid and an important report on climate change were also dismissed. ”According to CNN.
In some of these cases, new officials may have an enduring policy that will shape the final chapter of Trump’s presidency. In other cases, however, their skills may be limited by legal questions about their authority, as was the case with Wolf and his attempts to change the DACA program.
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