DHS IG should investigate Ken Cuccinelli’s invalid immigration enforcement agreements 

DHS Inspector General Joseph Cuffari should investigate immigration enforcement “agreements” between former DHS political appointee Kenneth Cuccinelli and several states—agreements which experts and DHS itself have deemed invalid and unenforceable—according to a complaint filed today by Citizens for Responsibility and Ethics in Washington. The agreements, which were executed by Cucinnelli, an illegally-appointed official who lacked any power to bind the agency, reflect a gross abuse of DHS’s contracting authority and were plainly designed to sabotage the incoming administration’s policy priorities.

In January 2021, Cuccinelli quietly executed so-called “Sanctuary for Americans First Enactment” agreements with Texas, Arizona, Alabama, Indiana, Louisiana, Montana, South Carolina, West Virginia, and a sheriff’s office in North Carolina. The agreements allow participating states to halt nationwide immigration policy for 180 days by requiring DHS to communicate with states before taking actions or making decisions “that could reduce immigration enforcement, increase the number of [undocumented immigrants] in the United States, or increase immigration benefits or eligibility for benefits for [undocumented immigrants].” Two days after President Biden took office, Texas Attorney General Ken Paxton sued the Biden administration to enforce Cuccinelli’s agreements and Arizona and Montana have filed a similar lawsuit.

Cucinnelli’s agreements are invalid and enforceable for two reasons. DHS, DOJ, and legal commentators have acknowledged that an outgoing administration cannot agree to cede federal power to states, local jurisdictions, or other third parties before a new administration assumes office, because the executive branch cannot contract away the constitutional power of its successors. Such tactics are antithetical to the orderly transition of executive authority demanded by our Constitution. Additionally, the U.S. District Court for the District of Columbia and the Government Accountability Office have determined that Cuccinelli was not properly appointed to his DHS position and therefore lacked the authority to act on behalf of the agency. 

DHS OIG should investigate Cucinelli’s agreements because they reflect a gross abuse of power, as well as a misuse of DHS’s contracting authority and the intergovernmental agreements processes. An investigation is also needed to determine if Cucinelli has executed other similar agreements that have not been disclosed and the extent to which other officials were involved. 

Cucinelli’s transparent attempts to thwart the presidential transition and the results of a democratic election reflect a clear abuse of DHS’s contracting authority by an illegally-appointed official who lacked any power to bind an agency. The OIG should launch an immediate investigation.