The Trump administration is making a bold claim about presidential powers, arguing that President Trump has the authority to appoint acting heads of federal agencies without Senate approval, even in cases where the law explicitly requires it.
This issue has come to light in a dispute involving the U.S. African Development Foundation (USADF), a small agency with a $40 million budget and about 30 staff members. The conflict began when Trump appointed State Department official Pete Marocco as the new chair of the USADF board, despite the fact that former Senator Carol Moseley Brown, who was confirmed by the Senate, has been serving in that role since 2024.
The USADF board and staff have refused to recognize Marocco as the legitimate chair, arguing in court that his appointment is illegal. They point to the Appointments Clause in the U.S. Constitution, which requires Senate confirmation for certain positions. However, a senior official in the Trump White House’s Presidential Personnel Office (PPO) claimed in an email that Trump has “inherent authority under Article II” of the Constitution to appoint acting agency heads without Senate approval. This claim has raised eyebrows among legal experts, who argue that it undermines the constitutional process for appointing officials.
Stanford University Law School professor Anne Joseph O’Connell called the administration’s argument a significant overreach of executive power, questioning why the Senate confirmation process would exist if the president could bypass it at will. Similarly, University of Minnesota Law School professor Nicholas Bednar explained that the administration’s interpretation would effectively allow the president to circumvent Congress’s role in checking executive appointments.
The 1998 Federal Vacancies Reform Act does allow presidents to appoint acting heads of federal agencies without Senate approval in some cases, but it specifically exempts certain independent agencies, including the USADF. The Trump administration has acknowledged this exemption but insists that the president’s “inherent authority” justifies Marocco’s appointment, despite the legal restrictions.
This situation highlights a broader debate about the limits of presidential power and the balance of authority between the executive and legislative branches. Critics argue that the administration’s actions could set a dangerous precedent, allowing future presidents to ignore constitutional checks and balances. As the legal battle continues, the outcome could have significant implications for how federal agencies are governed and how much power the president can wield in making appointments.
