For more than a year, Chad Wolf ran the Department of Homeland Security without Senate confirmation and without any authority to hold that position in an acting capacity. During his time as the purported Acting Secretary, Wolf approved a series of wide-ranging DHS policies and regulations. One of those regulations imposed new limits on companies that provide bail bonds to detained immigrants. In response, several of those companies filed suit, contending that Wolf had no authority to issue the regulation because he was serving as DHS’s Acting Secretary unlawfully. The following year, the Department’s new Secretary, Alejandro Mayorkas, purported to ratify Wolf’s regulation. The government argued that this ratification cured any illegality stemming from Wolf’s appointment. 

In August 2022, a federal district court vacated the regulation, concluding that Wolf held the position of Acting Secretary unlawfully and that the Federal Vacancies Reform Act (FVRA) prohibited Secretary Mayorkas from ratifying Wolf’s action. The government appealed to the Ninth Circuit, and in March 2023, CAC filed an amicus brief in support of the companies. 

Our brief first explained that the FVRA is a critical check on the manipulation of appointments by the executive branch. As we described, Congress enacted the FVRA in response to the executive branch’s increasing refusal to comply with the Appointments Clause and with prior legislation that limited the use of acting officials. The FVRA’s purpose is to create an exclusive process for the temporary filling of vacant offices, and the Act carefully limits who may serve as an acting officer. To ensure compliance, the FVRA further provides that actions violating its limits have no effect and “may not be ratified.” 

We then explained that the FVRA prohibits ratification of regulations that were issued by an unlawfully serving Acting Secretary of Homeland Security. According to the government, the FVRA’s anti-ratification penalty has an extremely limited reach and almost never applies to any action taken by any unlawfully serving official. We showed why the Act’s text, structure, purpose, and history all refute that narrow reading. The government’s position not only deprives the statute of nearly all effect, but it does so by permitting the precise type of abuse that Congress sought to eliminate when it passed the FVRA. 

Finally, we demonstrated that Chad Wolf was unlawfully wielding the Secretary’s authority when he approved the regulation being challenged in this case. Wolf purportedly became the Acting Secretary by virtue of an order signed by the previous Acting Secretary, Kevin McAleenan. But because McAleenan himself was never a valid Acting Secretary, he could not lawfully install Wolf as his successor. Every court to address this issue has agreed, and our brief argued that there was no reason for the Ninth Circuit to depart from that consensus. 

In October 2023, the Ninth Circuit held oral argument in the case. With the court’s permission, CAC participated in the oral argument as amicus curiae, arguing that the FVRA prevents anyone from ratifying the actions of illegally serving officials like Chad Wolf and that the government’s narrow interpretation of the statute is wrong. 

In July 2024, the Ninth Circuit reversed the district court’s judgment and held that the FVRA did not bar Secretary Mayorkas from ratifying Wolf’s regulation. The court agreed that Wolf had no authority to act as Homeland Security Secretary or approve the regulation at issue. But the court concluded that the FVRA’s ratification bar applies only to “nondelegable” functions and duties, and that the bar did not apply in this case because the Secretary’s authority to approve regulations is delegable. As a result, the court held that Secretary Mayorkas’s ratification of the regulation “cured any defect” in its original issuance. In a concurring opinion, Judge Anthony Johnstone largely agreed with the majority’s analysis but maintained that the FVRA is ambiguous on this question.   

Judge Morgan Christen dissented, agreeing with our position that the text, structure, purpose, and history of the FVRA are inconsistent with the government’s narrow reading of the anti-ratification penalty. According to the dissent, that penalty applies to all functions and duties that Congress assigns to a single officer. The dissent also explained that the majority opinion renders the FVRA “a near-dead letter” by exempting the vast majority of FVRA violations from the FVRA’s penalties.  

In October 2024, the plaintiffs petitioned the full Ninth Circuit to rehear the case en banc, and CAC filed an amicus brief supporting that petition. Our brief explains that the panel decision badly misconstrued the FVRA, departed from Supreme Court precedent, and weakened the critical safeguards of the Appointments Clause.

In October 2024, the Ninth Circuit denied the petition for rehearing en banc. Judge Christen voted to grant the petition.