Politicization of the Department of Homeland Security: Using CBP and ICE as Political Tools and Installing an Illegally Serving Secretary
Tier 3Documented2017-01-25 to 2021-01-11
Factual Summary
During Donald Trump's first term, the Department of Homeland Security (DHS) was transformed from an agency focused on counterterrorism, disaster response, and border management into a vehicle for the administration's political priorities, particularly immigration enforcement. This transformation was characterized by the deployment of federal agents for politically motivated operations, the installation of leadership figures who lacked Senate confirmation, and the eventual determination by both the Government Accountability Office (GAO) and federal courts that the acting secretary was serving illegally.
DHS was created in 2002 in response to the September 11, 2001, terrorist attacks, consolidating 22 federal agencies under a single department with a primary mission of protecting the homeland from terrorism. Under the Trump administration, the department's emphasis shifted dramatically toward immigration enforcement and border security, often in ways that coincided with political messaging rather than operational necessity.
In the summer of 2020, the Trump administration deployed DHS tactical units, including agents from Customs and Border Protection (CBP), to Portland, Oregon, in response to protests following the killing of George Floyd. Federal agents in unmarked vehicles detained protesters without identifying themselves, drawing comparisons to authoritarian tactics. Acting DHS Secretary Chad Wolf visited Portland and publicly praised the deployment as a success, characterizing the operation in terms aligned with Trump's "law and order" campaign messaging. The deployment was challenged in court, and a federal judge issued a temporary restraining order limiting agents' use of force against journalists and legal observers.
Chad Wolf became acting secretary of DHS in November 2019. He was never confirmed by the Senate. On August 14, 2020, the nonpartisan Government Accountability Office issued a legal opinion concluding that both Wolf and Senior Official Performing the Duties of Deputy Secretary Ken Cuccinelli were serving illegally. The GAO found that the succession order under which Wolf assumed the role was invalid because his predecessor, Kevin McAleenan, had not been properly authorized to serve as acting secretary and therefore could not validly designate a successor.
Multiple federal courts subsequently agreed with the GAO's determination. In November 2020, U.S. District Judge Nicholas Garaufis ruled that Wolf "was not lawfully serving as the Acting Secretary of Homeland Security" when he issued a memorandum suspending new DACA applications. The court found that the succession chain leading to Wolf's appointment violated both the Federal Vacancies Reform Act and the Homeland Security Act. As a result, the DACA suspension was invalidated.
In September 2020, a separate federal judge ruled that Wolf was likely serving unlawfully and temporarily blocked new asylum restrictions he had issued. Multiple other DHS policy actions taken under Wolf's authority were subsequently challenged on the same legal basis.
Wolf resigned on January 11, 2021, citing the court rulings finding his service illegitimate. In his resignation letter to DHS employees, Wolf acknowledged the legal complications surrounding his appointment.
Throughout this period, Trump cycled through DHS leadership at an unprecedented rate. The department had five different leaders (including acting officials) during Trump's four-year term: John Kelly, Elaine Duke (acting), Kirstjen Nielsen, Kevin McAleenan (acting), and Chad Wolf (acting). This turnover enabled Trump to install compliant officials without subjecting them to Senate confirmation, where they would have faced questioning about controversial policies.
Primary Sources
1. GAO Legal Opinion, B-331650, "Department of Homeland Security: Legality of Service of Acting Secretary of Homeland Security and Senior Official Performing the Duties of the Deputy Secretary of Homeland Security," August 14, 2020: https://www.gao.gov/
2. Batalla Vidal v. Wolf, No. 16-cv-4756 (E.D.N.Y.), ruling by Judge Nicholas Garaufis, November 2020
3. Casa de Maryland v. Wolf, ruling by U.S. District Judge Paula Xinis, September 2020
4. Chad Wolf resignation letter, January 11, 2021
5. Federal Vacancies Reform Act, 5 U.S.C. 3345 et seq.
Corroborating Sources
1. Government Executive: "Top Two Homeland Security Officials Are Serving Illegally, GAO Rules," August 2020
2. NBC News: "Federal judge rules acting DHS head Chad Wolf unlawfully appointed, invalidates DACA suspension," November 2020
3. CNN: "Judge rules Chad Wolf likely unlawfully serving as Homeland Security secretary and temporarily blocks some asylum restrictions," September 2020
4. Law and Crime: "Federal Judge Rules Chad Wolf Was Not Lawfully Serving as DHS Head," November 2020
5. U.S. News: "Acting Homeland Security Secretary Chad Wolf Resigns, Citing Court Rulings," January 2021
Counterarguments and Context
The Trump administration argued that the succession order under which Wolf served was valid and that the GAO opinion was non-binding. DHS maintained that Wolf had full authority to act as secretary and that his policy directives were lawful. Supporters noted that the use of acting officials is common across administrations and that Senate confirmation delays, often caused by political obstruction, necessitate the appointment of acting leaders. Regarding the Portland deployment, the administration argued that federal agents were protecting federal property from sustained vandalism and that their presence was authorized under existing federal statutes. The court rulings on Wolf's authority were specific to the procedural chain of succession rather than to the substance of DHS policies, and some of the disputed policies were later reimplemented through proper legal channels.
Author's Note
The GAO's finding that the acting head of a major federal department was serving illegally is an extraordinary determination. It means that DHS, which oversees immigration enforcement, border security, disaster response, cybersecurity, and the Secret Service, was led for over a year by someone without legal authority to hold the position. Policy actions taken during that period, affecting hundreds of thousands of people, were subsequently invalidated by federal courts. The rapid turnover at DHS leadership and the reliance on acting officials were not incidental. They enabled the White House to maintain direct control over the department without the accountability that Senate confirmation provides. The deployment of DHS agents to domestic protests represented a further departure from the department's founding mission and raised serious questions about the use of federal law enforcement as a tool of political messaging.