Fruit of the Poisonous Tree: The Absence of Senate-Confirmed Leadership at DHS and CBP Could Implicate Enforcement of International Trade Laws
Time to read: 7 mins
On August 14, 2020, the U.S. Government Accountability Office (GAO) concluded the appointments of the Acting Secretary of the U.S. Department of Homeland Security (DHS) and other senior officials violated the rules governing the order of succession.1 DHS has not had a Senate-confirmed leader since April 2019, nor have leaders of DHS component agencies, including U.S. Customs and Border Protection (CBP), been confirmed by the Senate. The lapse of Senate-confirmed DHS leadership has been the subject of litigation resulting in preliminary injunctions, and the U.S. District Court of the District of Columbia recently ruled the designation of an Acting Director at a DHS component agency violated the Federal Vacancies Reform Act (FVRA). These developments could render CBP rulings, policies, and rulemakings since late 2019 vulnerable to ultra vires collateral attacks under the FVRA and the Administrative Procedure Act (APA), although such challenges would present issues of first impression.2
Congress enacted the FVRA to prevent the executive branch from circumventing the Senate confirmation process.3 The FVRA limits who may serve as an acting official when an office requiring Senate confirmation becomes vacant as well as how long an acting official may occupy that office.4 The statute creates the default rule that “the first assistant to the office shall perform the functions and duties of” the vacant office “temporarily in an acting capacity.”5 The FVRA permits the President to override the default rule and appoint as an acting official either another Senate-confirmed official or an individual who served a sufficient time in the prior year as a senior official within the executive agency housing the vacant office.6 The person serving as an acting officer may only serve in the office for 210 days beginning on the date the vacancy occurs, and the 210-day period can only be extended if the President formally nominates someone to the office.7 To prevent circumvention of the Senate confirmation process, the FVRA requires an office to remain vacant once the 210-day period lapses, and only the head of the executive agency may perform any function or duty of the office.8 More notably, the FVRA expressly provides that actions taken in violation of its provisions are “without force and effect” and “may not be ratified.”9
The designation of Mark A. Morgan as the current CBP Acting Commissioner potentially violates the FVRA. The last Senate-confirmed CBP Commissioner was confirmed in March 2018 and was subsequently designated DHS Acting Secretary in April 2019. As DHS Acting Secretary, he then designated a CBP Acting Commissioner. However, the designee resigned in July 2019, and Morgan assumed the role. But Morgan was not eligible under the default rule because he was not the “first assistant” when the vacancy arose and did not hold government office from January 2017 and May 2019. Morgan was also not a Senate-confirmed official in 2019 while serving as Acting Director of ICE nor employed by DHS or CBP 90 days before the vacancy. Finally, Morgan’s term has also exceeded the allowable 210-day period for eligible designees, which expired in November 2019, and the President has not submitted a nominee to the Senate. Accordingly, any actions taken by CBP, taken at the direction of Morgan after November 2019, could potentially be deemed “without force and effect” under the FVRA and otherwise not issued “in accordance with law” under the APA.10
This absence of Senate-confirmed leadership could have significant consequences, compromising nearly a year’s worth of CBP trade enforcement efforts: CBP collected $72 billion in duties and seized 372 shipments subject to ITC exclusion orders with an estimated value of $3.7 million in FY 2019.11 First, the CBP Commissioner’s statutory duties include “the enforcement of the customs and trade laws of the United States.”12 Moreover, CBP has a statutory responsibility to review imports for consistency with U.S. laws and regulations and to assess and collect appropriate duties, taxes, and fees on those imports. This requires CBP to classify and value imports, interpret and enforce ITC Section 337 exclusion orders, and assess and collect antidumping and countervailing (AD/CVD) duties,13 Section 232 duties imposed by the Trump Administration on steel and aluminum products, and Section 301 duties imposed by the U.S. Trade Representative on most Chinese imports.14 Adverse decisions are subject to CBP protest and, if denied, subject to appeal by the importer to the U.S. Court of International Trade (CIT). Accordingly, CBP decisions or determinations deemed final in certain circumstances could be challenged under the FVRA and APA.15
Consequently, unless the President nominates and the Senate confirms a DHS Secretary or CBP Commissioner, actions taken under Morgan are susceptible to scrutiny under the FVRA and APA.
September 29, 2020
 U.S. Gov’t Accountability Off., B-331650, Department of Homeland Security—Legality of Service of Acting Secretary of Homeland Security and Service of Senior Official Performing the Duties of Deputy Secretary of Homeland Security (Aug. 14, 2020).
 See, e.g. A.B-B v. Morgan, Docket No. 1:20-cv-0846 (D.D.C. 2020); L.M.-M v. Cuccinelli, 442 F. Supp. 3d 1, 29 (D.D.C. 2020); Casa De Maryland v. Wolf, Docket No. 8:20-cv-02118 (D. Md. 2020); Don’t Shoot Portland v. Wolf, Docket No. 1:20-cv-02040 (D.D.C. 2020).
 See S. Rep. 105-250 (1998).
 8 U.S.C. § 3346(a).
 5 U.S.C. § 3345(a)(1).
 Id. § 3345(a)(2)-(3).
 Id. § 3346(a)(l); 8 U.S.C. § 3346(a)(2). The plain language of § 3346(a)(l) ties the 210-day period to “the vacancy” and thus limits the time that the office can be filled by an acting official. Id.; see also NLRB v. SW Gen., Inc., 137 S. Ct. 929, 936 (2017) (“the statute permits acting service” only for the 210-day period).
 See S. Rep. 105-250, at 17; see also id. at 19; Id. § 3348(b)(l)-(2).
 Id. § 3348(d)(l)-(2).
 See, e.g., L.M.-M, 2020 WL 985376, at *26 (quoting 5 U.S.C. § 706(2)(A)).
 U.S. Customs and Border Protection, Trade Statistics (Last Modified Sept. 23, 2020), available at: https://www.cbp.gov/newsroom/stats/trade.
 6 U.S.C. § 211(c)(4); see also 19 U.S.C. § 4301(4)(A)-(CC) (defining the term “customs and trade laws of the United States.”).
 Legal authority over customs revenue functions is vested in the Secretary of the Treasury, and, under Treasury Order 165, was delegated to the U.S. Customs Service. In March 2003, the U.S. Customs Service was transferred to the Department of Homeland Security, and authority over customs revenue functions was delegated to the Department of Homeland Security. 68 Fed. Reg. 10777-01 (Mar. 6, 2003).
 See, e.g., Wirtgen America, Inc. v. United States, 443 F.Supp.3d 198 (D.D.C. 2020) (“If Wirtgen's claims fall within that carve-out, Congress intended that they be adjudicated exclusively by the ITC and the Federal Circuit. If Wirtgen's claims do not fall within that carve-out, Congress intended that they be adjudicated exclusively by Customs and the Court of International Trade. Indeed, the CIT has confirmed that is ready to entertain Wirtgen's claim that Customs wrongfully excluded the six redesigned machines “without an underlying directive from the Commission.”); see also One World Techs., Inc. v. United States, 357 F. Supp. 3d 1278, 1282 (Ct. Int'l Trade 2018) (adjudicating Plaintiff's claim that Customs should not have denied its protest because its redesigned products were “not included in the scope of the Limited Exclusion Order” issued by the ITC under Section 337); Corning Gilbert Inc. v. United States, 896 F. Supp. 2d 1281, 1283 (Ct. Int'l Trade 2013) (adjudicating Plaintiff's challenge to Customs’ exclusion of Plaintiff's merchandise based on a general exclusion order issued by the ITC pursuant to Section 337).
 See, e.g., Koyo Corp. of U.S.A. v. United States, 497 F.3d 1231, 1239 (Fed. Cir. 2007) (ruling that liquidation is subject to protest when Customs fails to execute liquidation instructions and instead, by delay, leaves the entry to automatic liquidation by operation of statute); Cemex, S.A. v. United States, 384 F.3d 1314, 1324 (Fed. Cir. 2004) (ruling that Customs made a particular “decision” regarding how to effect liquidation); Xerox Corp. v. United States, 289 F.3d 792, 795 (Fed. Cir. 2002) (where Customs misapplied clear Commerce order, protest was properly filed under § 1581(a); “correcting such a ministerial, factual error of Customs is not the province of Commerce” but is instead properly the subject of a protest under 19 U.S.C. § 1514(a)(2).”). Factual findings by CBP regarding a subject import may be protested pursuant to 19 U.S.C. § 1514(a) when “the scope of the antidumping duty order is unambiguous and undisputed, and the goods clearly do not fall within the scope of the order.” Xerox Corp. v. United States, 289 F.3d 792, 795 (Fed. Cir. 2002); see also Chemsol, LLC v. United States, 755 F.3d 1345, 1350 (Fed. Cir. 2014) (“[F]indings related to liquidation ... merge with the liquidation.”) (quoting Volkswagen of Am., Inc. v. United States, 532 F.3d 1365, 1370 (Fed. Cir. 2008)). In such situations, a scope ruling by Commerce is unnecessary because “the scope of the order is not in question.” Xerox, 289 F.3d at 795 (“[C]orrecting such a ministerial, factual error of Customs is not the province of Commerce.”).