On the menu today: A federal judge argues that acting secretary of Homeland Security Chad Wolf is not legally in his position; nearly four years into the Trump administration, some presidentially appointed positions in the federal government remain empty; an option for fighting wildfires that probably ought to be used earlier; and an event you don’t want to miss.

Why Is Chad Wolf Still an Acting Secretary of Homeland Security?

Asylum seekers who had entered the United States want to find legal ways to work while awaiting a decision on their case. The Department of Homeland Security instituted a new rule requiring asylum seekers wait 365 days to apply for work permits, instead of the previous 150 days, and that they submit fingerprints and other biometric information as part of the application process. Yesterday, Judge Paula Xinis, an Obama-nominated federal judge in Maryland, struck down those new rules, and also “blocked DHS from eliminating requirements that it rule on work permit applications within 30 days, and that it deem any application that is still pending after 30 days ‘complete’ for the purposes of granting work authorization.”

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But perhaps the most consequential aspect of Xinis’s ruling is her contention that the acting secretary of Homeland Security, Chad Wolf, is not legally in his position. “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,” her ruling stated. If Wolf is not legally the secretary, it makes it much easier for any judge to strike down any DHS rule he enacts.

Wolf assumed the office on November 13, 2019. No doubt the man has been busy, what with the pandemic and riots and all, but it’s been ten months. The controversy over whether Wolf is a legitimate acting secretary could be resolved fairly easily by the Senate confirming him.

One of the odd complications is that Wolf was never confirmed by the Senate for his previous position as under secretary for Strategy, Policy, and Planning. The Senate has been GOP-controlled for the entirety of the Trump presidency, but any senator may place a “hold” on a nominee as leverage in negotiations with the White House. Nevada Democratic senator Jacky Rosen placed a hold on Wolf’s nomination to be confirmed as undersecretary for five months, declaring she would only lift it “if conditions at the border significantly improved, including the hiring by [U.S. Customs and Border Protection] of pediatricians and child welfare professionals and increased access to CBP facilities for non-governmental organizations.” Wolf was an acting, not-yet-confirmed undersecretary when he was promoted to the position of acting secretary.

Wolf addressed a variation of this question in an interview with Jake Tapper on CNN last month:

TAPPER: The Government Accountability Office just reaffirmed its ruling on Friday that your appointment to the position acting secretary of the Department of Homeland Security was invalid. Now, it all gets very complicated, but the bottom line is that DHS, according to this agency, used the wrong line of succession when Secretary Kirstjen Nielsen resigned, which meant that your predecessor Kevin McAleenan’s acting appointment, which is invalid, and, therefore, that your acting appointment is invalid. How can you credibly serve as a top law enforcement official in the U.S. if, according to GAO, your very appointment was illegal?

The GAO report can be found here; GAO referred the matter to the DHS inspector general.

WOLF: Well, thanks for the question, Jake. And I agree with you, it is complicated. What I will say is, the Homeland Security Act gives the secretary of homeland security discrete and broad discretion, exclusive authority to appoint his or her successor. So, Secretary Nielsen, as you mentioned, did that in three different ways. She amended the order of succession. She sent out an employee message to over 250,000 employees of the Department of Homeland Security indicating that Kevin McAleenan would succeed her. And then she swore in Kevin McAleenan.

If that’s not any clearer about her picking her successor, I’m not sure what is. So, GAO did not look at all three of those measures. They only commented on one of those. And, as you can tell, we disagree with what the GAO said. Again, they have no authority in this area. They have authority to look at the Federal Vacancy Act. That’s not how we use — that’s not the authority that we use when we appoint our successors at the department. Homeland Security Act is. And so, again, we vehemently disagree with what the GAO had put out.

TAPPER: So, it’s August 2020. DHS has not had a Senate-confirmed secretary since April 2019. That’s more than a year. One in four of your top positions are acting or vacant. Obviously, this is not how the system was designed to work. You’re one of the top law enforcement officers in the U.S. Do you want to be confirmed by the Senate? I mean, I think you likely would be. It’s a Republican Senate.

WOLF: So, I have been very clear. I have been very clear about this in my confirmation as undersecretary of the department. I strongly believe that the department needs a confirmed secretary. I will continue to say that. I don’t make personnel decisions from the White House. The White House Personnel Office does.

Two days after this interview, Trump announced he would nominate Wolf to be secretary. But with just 49 days until the election, the Senate is unlikely to confirm Wolf before the election.

For several years now, some of us pointed out that the Trump administration was slow to name people to appointed positions in the federal government, and the Senate was not particularly speedy in confirming those nominees, either. Some of this can be blamed on the mountains of paperwork required, some of this can be blamed on the senatorial holds, some of this can be blamed on the recesses in the Senate schedule. But the Senate can’t do anything for positions where the administration doesn’t nominate anyone. As of yesterday, out of 757 top positions, the Trump administration never appointed anyone to 135 of them.

The president never nominated anyone to the positions of undersecretary of public diplomacy, four State Department assistant secretaries, or ambassadors to Honduras or Qatar. At the Department of Justice, Trump never nominated anyone to be associate attorney general; administrator of the Drug Enforcement Administration; commissioner or chairman of the U.S. Parole Commission; or director of the Bureau of Alcohol, Tobacco, Firearms and Explosives. In the Department of the Interior, Trump never nominated anyone to be director of the National Park Service or the Bureau of Land Management.

The administration has never nominated anyone for the positions of chief financial officers at the departments of State, Defense, Education, Energy, Treasury, or EPA. There are acting inspector generals in the departments of State, Treasury, and for the intelligence community. Nor has the administration ever nominated anyone to three currently empty seats on the Federal Election Commission, two seats on the Federal Deposit Insurance Corporation, two positions on the International Monetary Fund, or an empty seat on the National Labor Relations Board.

If you believe there is a “deep state” of federal bureaucrats attempting to undermine and sabotage the administration’s policies, this is particularly inexcusable, as each one of these positions is an opportunity for the administration to ensure that there is a like-minded ally in these federal offices, ensuring policy is moving in the direction they want. The argument that not appointing people to these positions represented some sort of cost-cutting measure is silly in light of the trillion-a-year deficits the Trump administration has been running and the $3 trillion in new debt this fiscal year.

In the end, President Trump came to Washington without a thick Rolodex of people who want to work in government and who passionately believed in his agenda. This is a key ingredient to effective policymaking; you can’t have everything run by your son-in-law.

To Fight Forest Fires, Send in the C-130s Earlier?

After yesterday’s Morning Jolt exploring the policy decisions exacerbating the wildfires in the West, a reader who follows those policies closely sent word that California does not deploy large fixed-wing aircraft like C-130s until the fire has already begun to spread significantly. “These planes, and the massive amount of fire retardant they can drop, are meant to be used as a last resort,” he writes. “Unfortunately, given statewide fire suppression policy failures and the resulting constant state of emergency in which we now operate, it may be necessary to deploy those large fixed wing aircraft almost immediately to nip fires in the bud.”

That seems like a wise shift in policy. Right now, according to Air Force magazine . . .

Four USAF airlift wings carry MAFFS — a roll-on, roll-off system with a massive 3,000-gallon tank that shoots fire retardant out of the rear parachute door of the Hercules. As of Aug. 21, four of those aircraft are flying daily, fighting more than 360 fires across California. Two C-130s from the California Air National Guard’s 146th Airlift Wing at Channel Islands Air National Guard Station are fighting fires within the unit’s own backyard in Southern California, while two C-130s from the Wyoming Air National Guard’s 153rd Airlift Wing are deployed to Sacramento to fight a series of complex fires in Northern California. Seventy-nine personnel are activated in total. Within the next week, C-130s from both the Nevada Air National Guard’s 152nd Airlift Wing and the Air Force Reserve’s 302nd Airlift Wing will rotate in to provide relief for the crews.

Considering the financial and human costs of wildfires lately . . . wouldn’t it be worth the expense and hassle to use the aircraft earlier in a fight?

ADDENDA: The show must go on! Please join us for an historic event — National Review Institute’s William F. Buckley Jr. Prize Dinner “Gala at Home” on October 5 honoring James L. Buckley and Virginia James. Guests will be invited to put on their tuxedos and ball gowns, grab a glass of champagne, and join us for a virtual experience. The program will include opportunities to connect with NR writers and dinner guests and tune into a mix of live remarks and videos from our honorees and dinner co-chairs. Your ticket or sponsorship will be fully tax deductible and go to support NRI’s educational and outreach programs that advance the NR mission during this critical time in our nation’s history. Don’t wait. RSVP today. I will be there, in my tuxedo! From the waist up, at least.

. . . Hey, flu shots are available. Get them early, because it takes about two weeks for your body to build up the antibodies. The CDC has an app to find places offering flu shots near you.