In email obtained by TPM, White House claims that Trump can appoint whoever he wants – absent Congress.
US President Donald Trump pumps his fist as he walks on the South Lawn of the White House on January 27, 2025 in Washington, DC. Trump returns to Washington after visits to disaster sites in North Carolina and Califo… MORE
The Trump White House has taken its attempt to seize direct control over the entire executive branch to a new level and laid out a startling legal rationale for the move in a previously unreported email obtained by TPM. If successful, Trump would be making a dramatic end run around the Senate’s advice and consent power for certain appointed positions.
Trump’s wide-ranging effort to bring independent agencies firmly under his control provoked a dramatic confrontation this week at the DC office of the U.S. African Development Foundation. The White House Presidential Personnel Office and elements of Elon Musk’s DOGE team moved to oust the board of USADF and purported to install a new acting chairman of the board, a step that legal experts tell TPM is unlawful.
The full extent of the confrontation at USADF became public when the president of the independent agency filed a lawsuit Thursday trying to block the White House’s assault on its independence. The lawsuit refers to a Feb. 28 missive to USADF management from the White House Presidential Personnel Office claiming to appoint Pete Marocco — a Trump official known for helping strangle USAID from within — as “acting chair” of USADF’s board.
TPM has obtained the email in question, which contains the broadest assertion of presidential power over independent agencies yet made by the second Trump administration. In it, Trent Morse, deputy assistant to the President and deputy director of presidential personnel at the White House, stakes out a legal position that would undercut the Senate’s power to confirm new officers at agencies like USADF, experts say. Trump, Morse asserted, would have the “inherent authority under Article II” to appoint acting officials without going through the Senate’s process of advice and consent.
Anne Joseph O’Connell, a professor at Stanford Law School, called the argument “so much more of an executive power claim than a lot of what they’ve done.”
“Why have a confirmations process?” she told TPM. “We wouldn’t need a confirmations process — and that’s written into the Constitution.”
The Trump White House’s move against USADF, whose board refuses to recognize Marocco’s appointment as legal, set off alarm bells within the legal community.
While the Senate has broad advice and consent powers, Congress has delegated some of its confirmation authority to the executive branch. Legislators have done so via a series of vacancies acts, the first of which was passed in 1792.
The most recent vacancies act, passed in 1998, exempts several independent agencies from its provisions, meaning that, in those cases, the Senate retained control over the ability to confirm appointments to the boards of these agencies. USADF is one of the excluded agencies.
In recent years, conservative lawyers and judges have pushed the envelope on the president’s ability to remove officials at independent agencies. But the question of whether the president can appoint new officials where Congress has not delegated the authority to do so via a vacancies statute is untested, in part because it contravenes centuries of practice.
To Nicholas Bednar, an associate professor of law at the University of Minnesota Law School, Trump’s assertion marks a break with both tradition and bedrock legal principles.
“Here what you have is a President who’s saying, well, the position’s vacant, so I’m allowed to temporarily appoint someone to that position without advice and consent of the Senate, but that’s not how this works,” he said. “It would effectively just be a runaround on Congress’s ability to check who the President wants in office.”
In the email, Morse asserts that “given the President’s inability to supervise the activities of the Board-less USADF, he has inherent authority to designate an acting Chairman of the Board.”
From there, the Trump official says that because the USADF is exempted from vacancies reform legislation, and because there is no mechanism in the statute that created USADF for appointing an acting official, he then faces a gap in his “inherent authority.”
“Therefore, the President currently has no way of ensuring the agency is running, or complying with his executive order, unless he directs an temporary official using inherent authority under Article II,” the message reads. “On behalf of President Donald J. Trump, Peter Marocco has been temporarily appointed acting chairman and board member of the USADF.”
To O’Connell, the Stanford law professor, the implications of the Trump White House’s power grab are extremely broad.
The White House did not define what it intended “temporary” to mean in the email, she noted, and such an appointment could last the entire term. Nor did it say if it believed it would apply to every agency that is exempted from federal vacancies legislation.
O’Connell said that the White House’s line of reasoning could create an opening for the Trump administration to bypass the Senate and install commissioners and board members at agencies like the Securities and Exchange Commission, the National Labor Relations Board, and the Federal Election Commission.
“That will be taking a lot of power away from the Senate power that is grounded in the Constitution and power that they have protected statutorily because they excluded these agencies from the Federal Vacancies Reform Act,” she told TPM.
Anna Kelly, White House deputy press secretary, told TPM in a statement that the administration had “reduced” USADF to its “statutory minimum” in order to comply with a Trump executive order.
“Entitled bureaucrats like Ward Brehm are only demonstrating why independent agencies must be held accountable to officials elected by the American people,” Kelly said.
The full text of the Morse email:
Given the President’s inability to supervise the activities of the Board-less USADF, he has inherent authority to designate an acting Chairman of the Board. The Federal Vacancies Reform Act [FVRA] excludes the USADF because its members are confirmed by the Senate and sit on a board “composed of multiple members” which controls a “Government corporation.” 5 U.S.C. 3349c(1). But the FVRA also appears to exempt the USADF from the requirement that the FVRA serve as the “exclusive means for temporarily authorizing an acting official.” Id. 3347(a), 3349c. Additionally, the USADF’s organic statute does not include any mechanism for the President to designate acting officials. See 22 USC 290h. Therefore, the President currently has no way of ensuring the agency is running, or complying with his executive order, unless he directs an temporary official using inherent authority under Article II.
On behalf of President Donald J. Trump, Peter Marocco has been temporarily appointed acting chairman and board member of the USADF.
Leave a Reply