According to a legal decision by the Government Accountability Office issued on Friday August 14, 2020, both acting Secretary Chad Wolf and Senior Official Performing the Duties of Deputy Secretary Ken Cuccinelli are ineligible for their posts under the Federal Vacancies Reform Act and the Homeland Security Act, and are serving illegally.
Wolf and Cuccinelli were named to their positions “by reference to an invalid order of succession,” GAO said. The auditors, who have authority to review the propriety of appointments under the Federal Vacancies Reform Act, did not rule on the fallout of their invalid service, instead deferring to the DHS inspector general for a decision on who should serve in the positions and “the question of the consequences of actions taken by these officials.”
Wolf and Cuccinelli’s fate will likely be decided in federal court. Both are facing several lawsuits seeking to deem their appointments as illegal, most of which aim to strike down policies they have put in place. A federal judge previously ruled Cuccinelli was serving unlawfully and voided his policy initiatives. The Trump administration dropped an appeal of that decision on Thursday.