In a bold and unprecedented move, the Trump White House has taken its efforts to consolidate power over the executive branch to a whole new level. An internal email, previously unreported and now obtained by TPM, lays out a startling legal justification for bypassing the Senate’s confirmation authority when it comes to certain appointed positions. If this maneuver succeeds, Trump would essentially sidestep the Senate’s traditional role, dramatically altering the balance of power between the executive and legislative branches.
The Battle for Control Over Independent Agencies
One of the most striking examples of this power play unfolded recently at the U.S. African Development Foundation (USADF). The White House’s Presidential Personnel Office, reportedly backed by elements from Elon Musk’s DOGE team, attempted to remove the existing board and install a new acting chairman. Legal experts have been quick to challenge the legality of this action, warning that it is a clear violation of long-standing legal precedents.
The situation came to a head when the USADF president took the matter to court, filing a lawsuit to block what he called an unconstitutional assault on the agency’s independence. Central to this legal battle is a Feb. 28 email from the White House’s Presidential Personnel Office, which declared that Pete Marocco—a controversial Trump official with a history of disrupting USAID—had been appointed as the “acting chair” of the USADF board.
The Legal Justification—or Lack Thereof
TPM obtained the email in question, and it reveals perhaps the most aggressive assertion of presidential authority over independent agencies that the Trump administration has ever attempted. The email, written by Trent Morse, deputy assistant to the President and deputy director of presidential personnel, claims that Trump has “inherent authority under Article II” to appoint acting officials without needing the Senate’s approval.
Legal scholars quickly pushed back. Anne Joseph O’Connell, a professor at Stanford Law School, called the claim “so much more of an executive power grab than a lot of what they’ve done before.” She pointed out that the Constitution explicitly outlines a confirmation process for key government positions, and Trump’s move essentially renders that process meaningless.
“Why have a confirmation process at all?” she asked. “If this stands, the President could just bypass the Senate whenever it’s inconvenient, which is not how our system is supposed to work.”
Breaking with Tradition and Legal Norms
While the Senate does have broad powers of advice and consent, Congress has, over time, delegated some of its authority to the executive branch through a series of vacancies acts, starting as far back as 1792. The most recent version, the Federal Vacancies Reform Act of 1998, specifically excludes certain independent agencies—including USADF—from its provisions. This means that, by law, the Senate retains control over who is confirmed to the boards of these agencies.
Trump’s new argument, however, suggests that because the USADF is exempt from the vacancies law and its founding statute doesn’t specify a method for appointing acting officials, he has the inherent authority to do so himself. Nicholas Bednar, an associate professor of law at the University of Minnesota Law School, argues that this rationale is deeply flawed.
“This is a clear break from both tradition and well-established legal principles,” Bednar said. “Trump is essentially saying that if a position is vacant, he has the right to fill it temporarily without Senate confirmation. That’s not how this works. If he gets away with this, it would be an unprecedented power grab, undermining the checks and balances that Congress has in place.”
A Slippery Slope for Presidential Power
In the email, Morse justifies Trump’s move by stating that without a board overseeing the USADF, the President has no way to ensure that the agency is complying with his executive orders. He then claims that because the USADF’s governing statute doesn’t explicitly lay out a process for appointing an acting official, Trump has a “gap” in his inherent authority—one that he can fill unilaterally.
“Therefore, the President currently has no way of ensuring the agency is running, or complying with his executive order, unless he directs a temporary official using inherent authority under Article II,” the email states. “On behalf of President Donald J. Trump, Peter Marocco has been temporarily appointed acting chairman and board member of the USADF.”
O’Connell warns that the implications of this power grab are far-reaching. Notably, the email never defines what “temporary” means, raising concerns that such an appointment could extend indefinitely. Additionally, it doesn’t clarify whether the same logic could be applied to other independent agencies, such as the Securities and Exchange Commission, the National Labor Relations Board, or the Federal Election Commission.
“That would be a massive shift of power away from the Senate,” O’Connell cautioned. “The Constitution grants the Senate confirmation power, and Congress has explicitly chosen to keep it for these agencies. If Trump gets away with this, it could set a dangerous precedent allowing future presidents to bypass the Senate whenever they want.”
The White House’s Justification
Anna Kelly, White House deputy press secretary, defended the move, arguing that the administration had merely reduced USADF to its “statutory minimum” in compliance with a Trump executive order. She dismissed concerns over the agency’s independence, saying that officials resisting the move were simply bureaucrats clinging to power.
“Entitled bureaucrats like Ward Brehm are only demonstrating why independent agencies must be held accountable to officials elected by the American people,” Kelly told TPM in a statement.
The Bigger Picture: Trump’s Executive Power Play
This latest battle over USADF is part of a broader trend in Trump’s approach to governance—one that prioritizes executive control at the expense of traditional checks and balances. In recent years, conservative lawyers and judges have increasingly tested the limits of presidential authority, particularly when it comes to removing officials from independent agencies. However, the question of whether a president can appoint new officials without congressional approval has largely remained untested—until now.
The Trump administration’s argument in this case represents a radical departure from centuries of legal and political norms. If it stands, it could pave the way for future presidents to exert unchecked authority over independent agencies, fundamentally reshaping the balance of power in Washington.
What Happens Next?
For now, the courts will have the final say on whether Trump’s latest maneuver holds up. The lawsuit filed by USADF’s president will likely set an important precedent for future battles over executive authority. But regardless of the outcome, this fight is just another chapter in the ongoing power struggle between the White House and Congress.
As this legal battle unfolds, one thing remains clear: Trump’s willingness to push the boundaries of executive power is as aggressive as ever. Whether or not the courts will rein him in is the question that could define the future of independent agencies—and the very nature of presidential authority in the United States.
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