An agreement signed on the last day of President Trump’s administration that would allow a federal labor union representing U.S. Immigration and Customs Enforcement (ICE) employees “the ability to indefinitely delay the implementation of agency policies” has been disapproved by the Department of Homeland Security’s (DHS) incoming leadership under President Biden’s Administration.

Acting Deputy Secretary for DHS Ken Cuccinelli signed the agreement with AFGE National ICE Council on his last day in office. It effectively gave the union “veto power” over any change in immigration policy under the Biden Administration, a power no other union within the department had. A complaint filed shortly after the agreement was signed argues that this level of power given to the National ICE Council is due to their political support for the Trump Administration.

On February 1, the Government Accountability Project filed a complaint on behalf of an anonymous current federal employee whistleblower over the agreement stating it gave the Union “extraordinary power and benefits – far more than what DHS agreed upon within its other employee unions which did not endorse President Trump.”

The American Federation of Government Employees (AFGE) is the largest federal employee union in the United States, representing 600,000 federal employees both domestically and abroad. The AFGE National ICE Council represents 7,500 members of ICE employees.

The AFGE National ICE Council’s President, Chris Crane, released a public statement formally endorsing President Trump in the 2020 U.S. Election. Their 2016 endorsement of President Trump was the first time the union had ever endorsed a presidential candidate in their history. The union “enthusiastically” supported President Trump’s immigration policy and “strong action to secure ,” even though his administration had signed multiple Executive Orders in May 2018 weakening labor unions’ activities and scope within the federal government.

Crane continued his union’s public endorsement of Trump by sharply criticizing then-Democratic Candidate Joe Biden’s “radical immigration policies that move America toward open borders.” Crane hypothesized that in “Joe Biden’s America, 11 million illegal aliens would be granted amnesty and no longer be prohibited from receiving taxpayer-funded healthcare,” a common argument of many Republic candidates throughout the legislative and executive branch of the U.S. government.

AFGE itself is an entity headquartered in Washington D.C. that runs off of funds separate from federal taxpayer money. Therefore, the union itself is able to publicly endorse a candidate running for office without violating the Hatch Act. However, those members that are federal employees cannot voice their political endorsements while on government time or while representing the government in any way in their official duties.

Ken Cuccinelli, the Senior Official Performing the Duties of the Deputy Secretary of Homeland Security, was second-in-command of the department under Acting Secretary Chad Wolf. Prior to accepting his role within DHS, he was known as an “immigration hard-liner” and “one of the president’s strongest cheerleaders on cable news.” However, other than his public support for conservative immigration policy, he had no prior experience in the field.

By federal law, under Title 5 U.S. Code Section 7114 (c)(3), the head of a federal agency has a 30-day period to disapprove any agreement made between the agency and their respective labor union. If the head of the agency neither approves nor disapproves within that period, it automatically goes into effect and becomes binding on both the agency and their labor union.

The Government Accountability Project complaint followed a letter sent to the current DHS Secretary, Alejandro Mayorkas, signed by 100 organizations urging the Secretary to disapprove the agreement before it would automatically go into effect. DHS disapproved the agreement on February 16, 2021. Senior Counsel Dana Gold for the Government Accountability Project commended Secretary Mayorkas for disapproving the “late-hour, politically motivated agreements with the ICE Union.” Had Secretary Mayorkas’ confirmation hearing been delayed, the agreement would have likely become de facto binding, presenting the Biden Administration with yet one more obstacle in the way of accomplishing campaign promises and keeping public support.

Secretary Mayorkas, the first Latino and immigrant confirmed as Secretary of Homeland Security, was sworn into office on February 2, 2021. He previously served as the Deputy Secretary for DHS and the Director for U.S. Citizenship and Immigration Services under President Obama. During his time under the Obama Administration, he led the implementation of the Deferred Action for Childhood Arrivals (DACA), providing safety from deportation to minors arriving in the United States without documentation.