Trump administration: Article II makes Article I unconstitutional
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Trump’s lawyers are literally arguing that the advice and consent power violates the inherent authority of the executive branch:
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.
The email doesn’t seem to contain the reason why this doesn’t apply under a Democratic president, but I’m sure Alito’s clerks are working on that right now. And I assume the only reason that John Yoo isn’t the solicitor general is that he can’t afford the pay cut.