Regulatory actions, leadership succession thrown into question by GAO finding on legality of appointments
Rosenzweig, a former deputy assistant for policy at DHS and a resident senior fellow at the R Street Institute, noted that the GAO finding “calls into legal question everything the department has done” since the McAleenan appointment. That includes regulations, orders and guidances issued by all of its agencies, he said, covering “anything that required the secretary’s signoff, including hiring and budget authority issues, that’s the number one impact.”
“Now, anyone adversely affected by a DHS decision can sue, saying it lacked authority,” Rosenzweig said. That could apply to a wide range of issues, from DHS oversight of chemical facilities to the department’s actions during protests in Portland.
CISA’s work with the private sector is generally on a collaborative basis, so it’s unclear if any of its guidances would be affected but anything with budgetary or personnel implications could come under scrutiny.
A vacancy arising because of this legal finding may be unlikely in the current political situation, Rosenzweig said, but a confusing question would come into play on succession if that were to happen. Under the rules, the FEMA Administrator would be next in line to become Acting DHS Secretary, followed by the CISA Director, he said, but “do you look at when the vacancy originally occurred, or at the current situation?”
When Kirstjen Nielsen resigned under pressure as DHS Secretary in 2019, the office of the FEMA Administrator was vacant, meaning the Acting DHS Secretary job should’ve gone to CISA Director Christopher Krebs at that time, Rosenzweig said.
Now, with a confirmed FEMA Administrator in place – Peter Gaynor – Rosenzweig asked, would the Acting Secretary job go to him or to the person in line at the time of the 2019 vacancy, meaning Krebs?
