ARI SHAPIRO, HOST:
Here's a question that sounds pretty simple. Who is in charge of the Department of Homeland Security? The Trump administration appointed an acting secretary last fall, but a government watchdog group says that appointment is not valid. And that raises big questions about whether recent actions by Homeland Security have even been legal. NPR's Camila Domonoske reports.
CAMILA DOMONOSKE, BYLINE: Becoming secretary of Homeland Security requires Senate confirmation. It's a check on the president's power. But acting secretary? Just there temporarily, no confirmation required. And the Trump administration has had a lot of temporary officials. Here's the president on "Face The Nation" in early 2019 describing the advantage of an acting secretary.
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PRESIDENT DONALD TRUMP: I like acting because I can move so quickly. It gives me more flexibility.
DOMONOSKE: He hasn't even asked the Senate to confirm some of these positions, and some of them are straining the definition of temporary.
STEPHEN VLADECK: Next Friday is the 500th day that we have not had a Senate-confirmed secretary of Homeland Security.
DOMONOSKE: Steve Vladeck is a law professor at the University of Texas.
VLADECK: That's a record for a cabinet vacancy.
DOMONOSKE: There are laws about who can fill that kind of vacancy, a process for finding a short-term replacement. Now the Government Accountability Office says that more than a year ago the department bungled the succession process, and the wrong person was put in charge. That acting secretary is the reason Chad Wolf became current acting secretary, and he appointed his second-in-command Ken Cuccinelli. And now this government watchdog says none of them are legitimate.
ANNE JOSEPH O'CONNELL: But the big question is, so what?
DOMONOSKE: That's law professor Anne Joseph O'Connell from Stanford.
O'CONNELL: The GAO's opinion is not binding on the agency. It's not binding on the courts.
DOMONOSKE: The department says it wholeheartedly disagrees with the report. But DHS is already facing a wave of lawsuits over actions taken while Wolf and Cuccinelli have been in charge, things like sending federal agents to Portland and setting new restrictions on asylum-seekers and DACA applicants. Those lawsuits argue the actions were illegal because Wolf and Cuccinelli shouldn't have their jobs to begin with. And now there's a government body saying the same thing.
O'CONNELL: And so I think it will be persuasive for some judges.
DOMONOSKE: So while the GAO opinion doesn't change anything by itself, O'Connell says it could help inspire action by the courts. Camila Domonoske, NPR News. Transcript provided by NPR, Copyright NPR.
