Again, Trump Is Going To LOSE, In East Bay IV... No "Price Gouging" Of Asylum Fees; Or Work Visa Fees.

There were two five-page supplemental briefs filed this morning, in the federal courts in Oakland -- on the question of whether the acting Secretary possessed the power he claimed, when this price gouging was undertaken, on behalf of Trump. Here is the nonsense the government offers -- essentially this: "even though I didn't have lawful authority, I later ratified my own acts -- and by my own signature. . . created my authority -- from whole cloth."

And here is the better argument on the point: Chad Wolf's acts were void from the go, since he was past his expiration date -- and not ever confirmed by the Senate, thus:

. . . .The Gaynor Order (ECF 75-2 Ex. 1) purports to invoke authority Gaynor “may have” under “GAO’s view.” But “GAO’s view” is that there has been no valid acting secretary since Nielsen resigned in April 2019. ECF 27-2 Ex. 2. In April 2019, Chris Krebs was next in line; Gaynor was not in office. Now, Wolf asserts he is Acting Secretary.

The Gaynor Order does not specify how or when a vacancy occurred between April 2019 and September 2020 making Gaynor “eligible to act” under Executive Order 13573, 81 Fed. Reg. 90667 (“EO”). That EO applies only to a person “eligible to act” under the Federal Vacancies Reform Act (“FVRA”) when a Secretary “has died, resigned or otherwise become unable to perform the functions and duties” -- not when an administration learns of “GAO’s view.” When GAO expressed its view, Gaynor was not “eligible to act” because the office of Secretary had been vacant for more than 210-days. 5 U.S.C. § 3346(a)(1). The Wolf Memo implies Gaynor became eligible pursuant to “5 U.S.C. § 3345(a)(2), when the President submitted [Wolf’s] nomination” on September 10. Wolf Memo at 2.

But 5 U.S.C. § 3345(a)(2) applies if an officer whose appointment must be “by and with the advice and consent of Senate, dies, resigns, or is otherwise unable to perform” – not if a nomination occurs. Defendants may claim they meant 5 U.S.C. § 3346(a)(2) but that only allows a nomination to extend service beyond 210 days for a person “serving. . . as described under section 3345.”

It does not create a vacancy under 5 U.S.C. 3345(a)(2). . . .

The Proposal and Final Rule were “action[s] taken by a person who [was] not acting under section 3345, 3346 or 3347,” they have “no force or effect” 9 and “may not be ratified.” 5 U.S.C. § 3348(d)(1), (2). An “action” includes an “agency action.” 5 U.S.C. § 3348(a)(1). . . .

Defendants are attempting an end-run around the FVRA so Wolf can “continue to serve,” Wolf Memo at 2, despite more than 500 days of service by unlawful officers and Wolf’s pending nomination. To do this, Defendants must try to talk their way around time limits; a nominations bar; eligibility limitations; a no-ratification provision; and manufacture a moment at which Wolf’s nomination, Gaynor’s accession, his change in the order of succession, and the purported “termination” of his authority all happened at once. Any interpretation of the FVRA that permits this is inconsistent with the FVRA’s purpose to “once and for all, put an end to [] ridiculous, specious, fallacious arguments that the Vacancies Act is nothing more than an annoyance to be brushed aside.” 144 Cong. Rec. S11025 (daily ed. Sept. 28, 1998) (statement of [Ed. note: Republican] Sen. Robert Byrd). . . .

Now you know. The price gouging against putative asylees, and work visa applicants. . . will never take effect. The law is that clear. Trump will not be able to create a slush fund for his vain wall, here.

नमस्ते