Jan 13, 2021 - Politics & Policy

Scoop: New DHS head tries end-around to shore up immigration rules

President Donald Trump listens as FEMA administrator Pete Gaynor Administrator speaks on protecting Americas seniors from the COVID-19 pandemic in the White House.

PTrump listens as then-FEMA Administrator Pete Gaynor speaks on protecting seniors from COVID-19. Photo: Mandel Ngan/AFP via Getty Images

The Trump administration is trying to cement immigration changes that face legal challenges by reissuing them through a new acting Homeland Security secretary imbued with authority courts have said his predecessors lacked.

Why it matters: Visa fee hikes, suspending the DACA program and other moves have been blocked because of a dispute over DHS's internal succession rules. While Trump is now trying a backdoor maneuver to protect some immigration actions, Joe Biden will have other ways to undo them.

The backstory: Multiple federal judges have found that former acting DHS Secretary Chad Wolf was likely unlawfully appointed, causing agency policies pushed through during his watch to be invalidated.

  • The same applied to his predecessor, Kevin McAleenan. The Government Accountability Office and courts found he improperly became acting secretary following Kirstjen Nielsen's resignation in April 2019.
  • The rules that guide how DHS vacancies are supposed to be filled suggest the new acting secretary, Pete Gaynor, is now a legitimate appointee.
  • He served most recently as administrator of the Federal Emergency Management Agency.

The end-around: Gaynor issued a memo Wednesday empowering Wolf, who remains DHS undersecretary for strategy, policy, and plans, to sign and ratify agency regulations.

  • Wolf then issued a memo ratifying rules published while he was acting secretary, as well as several immigration rules issued under McAleenan.

In a letter announcing his resignation, Wolf wrote "this action is warranted by recent events, including the ongoing and meritless court rulings regarding the validity of my authority as acting secretary."

  • That passage set off alarm bells with watchdog groups.
  • Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, asked in a tweet whether "Gaynor is going to come in and ratify all of Wolf's prior actions."
  • Courts have blocked fee hikes as well as wide-ranging, harsh restrictions on asylum, citing Wolf's likely invalid succession.

Flashback: In November, a federal judge said the outgoing administration's latest suspension of the so-called Dreamers program was invalid for the same reason.

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