Trump admin claims he has 'inherent authority' to ignore this key Constitutional clause
U.S. President Donald Trump attends the White House Crypto Summit at the White House in Washington, D.C., U.S., March 7, 2025. REUTERS/Evelyn Hockstein
President Donald Trump's administration is now making possibly its biggest assertion yet of sweeping executive powers no previous president has exercised.
The U.S. African Development Foundation (USADF) — a small agency with a $40 million budget and a staff of roughly 30 people — has been in an intense battle with the administration as it seeks to replace its board chair and lay off its staff. Last week, Trump tapped State Department official Pete Marocco to chair the USADF's board, even though former Sen. Carol Moseley Brown (D-Ill.) is the Senate-confirmed board chair who has been in the role since 2024.
The board and staff of the USADF do not recognize Marocco as the legitimate chair and have argued in court that his appointment was illegal. On Friday, Talking Points Memo (TPM) reported that it obtained an email from a senior official in the Trump White House's Presidential Personnel Office (PPO) claiming that Marocco is the legal chair, as Trump has the "inherent authority under Article II" of the U.S. Constitution to put acting agency heads in place without the advice and consent of the U.S. Senate. This would be a clear-cut violation of the Appointments Clause in Article II, Section 2 of the Constitution.
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Stanford University Law School professor Anne Joseph O'Connell said the PPO email was "so much more of an executive power claim than a lot of what they’ve done."
"Why have a confirmations process?” O'Connell told TPM. “We wouldn’t need a confirmations process – and that’s written into the Constitution.”
TPM's Josh Kovensky reported that the most recent vacancies act in 1998 indeed lets presidents appoint acting heads of federal agencies without Senate approval. And officials in an "acting" role are typically limited in what they can do, and have a timeline on how long they can temporarily lead an agency until they're officially confirmed by the Senate. But the 1998 legislation exempts several independent agencies from the rule allowing acting heads to be put in place without senators confirming them — including the USADF. The Trump official even acknowledged that the USADF was exempted in that law, but insisted that because this poses an obstacle to his "inherent authority" that Marocco's appointment as the agency's new board chair is justified.
“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,” University of Minnesota Law School professor Nicholas Bednar told Kovensky. “It would effectively just be a runaround on Congress’s ability to check who the President wants in office.”
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Click here to read TPM's report in full.
