“In sum, the Court concludes that Plaintiffs are likely to demonstrate (former acting Homeland Security Secretary Kevin) McAleenan’s appointment was invalid under the agency’s applicable order of succession, and so he lacked the authority to amend the order of succession to ensure Wolf’s installation as Acting Secretary,” Judge Paula Xinis’ 69-page ruling said.
Xinis also wrote that “by extension, because Wolf filled the role of Acting Secretary without authority, he promulgated the challenged rules also ‘in excess of…authority,’ and not ‘in accordance with the law.'”
CNN has reached out to the department for comment.
The preliminary finding that Wolf is likely unlawfully serving in his position came as a part of temporarily blocking two asylum rules while the lawsuit over those rules is heard. The case is ongoing.
CNN has previously reported that the Government Accountability Office found that Wolf and Ken Cuccinelli, the senior official performing the duties of deputy secretary, were appointed as part of an invalid order of succession.
“We vehemently disagree with what the GAO has put out,” Wolf told CNN’s Jake Tapper at the time.
The Friday ruling comes weeks after President Donald Trump tweeted that he would officially appoint Wolf to take over the role on a permanent basis. Wolf’s nomination was formally sent to the Senate last week.
Wolf has been the acting secretary since November 2019. The department has not had a confirmed secretary since April 2019 when former Secretary Kirstjen Nielsen was forced to resign.
Wolf has been at the forefront of a host of issues like immigration, civil unrest and the coronavirus pandemic response, and as a result, has come under criticism for his actions. During Wolf’s tenure, the department has been marked by a focus on the border wall, a fight with New York over Global Entry and more recently, a deployment of federal officers to Portland, Oregon, in opposition to local officials.
Last month, a coalition of 20 state attorneys general and 10 cities and counties challenged the Trump administration’s new rules that they argued limited access to employment authorization for asylum seekers, according to a statement from New York Attorney General Letitia James’ office.
“The first rule would require asylum seekers to wait a year before applying for employment authorization, and bar many from obtaining authorization at all. The second rule would eliminate the longstanding requirement that employment authorization applications be processed within 30 days, thus allowing such applications to sit untouched indefinitely,” James’ office said.
Court documents state the new rules took effect in late August.
Xinis found that DHS “completely sidestepped this critical impact of the new rules” and “never wrestled with the fundamental implications of deferring or denying advance work authorization.”
“Substantially limiting approval of work authorization for bona fide asylees will inevitably affect their ability to afford the costs of seeking asylum, including hiring legal counsel,” Xinis wrote.
Xinis’ order granted injunctive relief to only members of Casa de Maryland, Inc. (CASA) and Asylum Seeker Advocacy Project (ASAP), two of the lawsuit’s plaintiffs that the judge found to have “demonstrated associational standing at this stage,” finding the relief “both proper and necessary to avoid irreparable harm.”
The organizations have approximately 100,000 and 4,000 members each, according to the judge’s order.
James welcomed the ruling in a statement Monday, calling Wolf a man with “no authority and no business sitting in the chair of the acting secretary of Homeland Security.”
“Not only is this decision welcome news for asylum seekers who were unfairly targeted by the Trump Administration, but the courts have now found that Chad Wolf has no authority at the Department of Homeland Security,” she said.
This story has been updated with additional information Monday.