In 2019, Pres. Trump tired of the head of DHS, Kirstjen Nielsen. So, he fired her. He replaced her with an acting head of DHS, Kevin McAleenan. Mr. McAleenan was later replaced by Chad Wolf. Pres. Trump placed a lot of emphasis on DHS, because that agency controlled immigration rules and regulations. On July 28, 2020, Chad Wolf signed an order removing protections for DACA immigrants. DACA (Deferred Action for Childhood Arrivals) was one of the President’s key targets. But, in placing Mr. Wolf in that position, the White House bypassed DHS regulations regarding succession.

Kevin McAleenan served in an acting capacity. DHS regulations prescribe carefully which agency head will succeed the secretary. The court found the placement of Mr. Wolf as acting head did not satisfy the order of succession then in force. It did not help the agency’s case that while a motion for summary judgment was pending, DHS changed its story about when Mr. Wolf signed that order removing DACA protection. At first it said he signed an order ratifying his prior July 28 order after he was nominated for confirmation on Sept. 10, 2020. Then on Nov. 13, 2020, it said no, Mr. Wolf signed the ratification order before Sept. 10.  The court generously describes the department as “confused” about when Mr. Wolf signed that order. See note 11, p. 21 of Judge Garaufis’ order.

The issue for summary judgment was the extent to which the White House observed the DHS order of succession left by Ms. Nielsen and then by Mr. McAleenan. The last confirmed Secretary was Ms. Nielsen. She resigned in April, 2019. The court denied DHS’s motion for summary judgment, while granting the plaintiff’s motion for summary judgment. It also granted the plaintiffs’ motion for conditional class certification.

The judge indicated some impatience with the agency when it notes that when Mr. Wolf signed the July 28 memo does not matter. The court wished the agency well in finding its own way out of its own “self-made thicket.” All the White House had to do to avoid this mess was to nominate an actual Secretary back in 2019. In four years this administration has had five secretaries of DHS, only two of whom were conformed. This department, more than any other, was in the forefront of Pres. Trump’s most controversial policies. Whether we agree with the policy or not, the government has shown considerable ineptitude.

See the court’s order here.