The Constitution requires that high-level federal officers like the Secretary of Homeland Security be appointed by the president with the advice and consent of the Senate.  The requirement of Senate confirmation is designed to ensure the accountability of agency heads, who enjoy significant authority to establish policy.  To further preserve the Senate’s constitutional prerogatives, Congress passed the Federal Vacancies Reform Act (FVRA), which places strict limits on the use of “acting” officers to fill vacant positions.

Despite these safeguards, the Department of Homeland Security has operated without a Senate-confirmed Secretary.  In August 2020 when the Department’s purported Acting Secretary, Chad Wolf, approved a new regulation that drastically increased the costs of applying for immigration benefits.  Among other things, the new regulation charged a non-waivable fee for asylum applications for the first time in U.S. history.  The regulation also required asylum seekers to pay a non-waivable fee of nearly $600 to seek work authorization, and it increased the cost of applying for naturalization, in some cases from $0 to $1,170.

Nonprofits that provide legal assistance to immigrants challenged the legality of the Department’s new regulation in court.  CAC filed an amicus brief in support of that challenge.

Our brief first described how Congress enacted the FVRA in response to the executive branch’s increasing noncompliance with the Appointments Clause and with prior legislation that limited the use of acting officials.  Next, we explained that Chad Wolf is violating the FVRA by serving as Acting Secretary of Homeland Security, for two independent reasons.  First, under the FVRA and the statutes governing the Department, Wolf was never eligible to become the Acting Secretary, and he assumed that position unlawfully.  Second, even if Wolf’s initial appointment were valid, the FVRA’s time limits on service for an Acting Secretary expired well before Wolf approved the regulation at issue.  Finally, our brief described the consequences of Wolf’s unlawful tenure.  Because Wolf is not a valid Acting Secretary, the FVRA requires that the new regulation he approved must have no force or effect.  In addition, Wolf’s approval of this regulation must also be set aside under the Administrative Procedure Act (APA), which requires that all agency actions be taken “in accordance with law.”

The U.S. District Court for the Northern District of California granted the plaintiffs’ motion for a nationwide preliminary injunction and a stay of the effective date of the regulation.  The district court determined, as we argued, that Chad Wolf did not validly become Acting Secretary of Homeland Security under the statutes governing the Department.  The court also concluded the that plaintiffs are likely to succeed on their claim that the new regulation violated procedural requirements of the APA.