Can the President Appoint Principal Officers Without the Senate?

Before entering the White House, Donald Trump garnered fame from firing aspiring business leaders in his 14 seasons hosting “The Apprentice.” The show’s catchphrase “You’re fired!” clearly followed Trump into public office, particularly his second term. Much attention (and, in some cases, litigation) has trained on these firings of leaders—including Gail Wilcox at the National Labor Relations Board (NLRB) and Cathy Harris at the Merit Systems Protection Board (MSPB), more than a dozen inspectors general, and the two Democratic members of the Federal Trade Commission (FTC), among many others. The White House claims that the president’s authority to fire these Senate-confirmed presidential picks—even in the face of statutory removal or notice protections—rests on Article II of the Constitution.

The courts may well endorse many of these removals of Senate-confirmed presidential appointees, with the Supreme Court likely to overturn Humphrey’s Executor, at least for non-adjudicatory officials. For instance, while the en banc U.S. Court of Appeals for the D.C. Circuit refused to stop the district court’s stay of Wilcox’s and Harris’s firings during the appeal, the Supreme Court stayed the order reinstating them to their jobs on April 9. 

President Trump is also making bold Article II assertions when it comes to selecting principal officers (and removing inferior officers not picked by the president). This piece focuses on these hiring and firing claims.

Although the NLRB, MSPB, and FTC are more well-known independent entities, the Inter-American Foundation (IAF), which “invests in community-led development across Latin America and the Caribbean,” and the United States African Development Foundation (ADF), which “invests in African enterprises which improve underserved communities in Africa,” have also experienced leadership upheavals since Trump returned to the White House. Importantly, the Federal Vacancies Reform Act of 1998 (Vacancies Act) applies to neither agency.

Congress established IAF and ADF each as a “body corporate,” which “shall have perpetual succession unless sooner dissolved by an Act of Congress,” with bipartisan boards of directors staffed with Senate-confirmed members. A section of Division F of the Further Consolidated Appropriations Act of 2024 mandates that both entities provide congressional appropriations committees notice before using funding “to implement a reorganization, redesign, or other plan ... .”

In mid-February, President Trump ordered these agencies, among other entities, to “reduce the performance of their statutory functions and associated personnel to the minimum presence and function required by law ... .” According to news reports, as part of his plans to drastically cut back on foreign assistance, President Trump then fired Sara Aviel, IAF’s president and chief executive officer. Aviel had been picked for the position by IAF’s Senate-confirmed bipartisan board of directors a few years earlier, to which Congress in addition gave the power to remove (and set other terms). The president also fired the entire board. Even though neither the Vacancies Act nor IAF’s statute provides for acting officials, Trump then named Peter Marocco as an acting board member, who selected himself as the board’s chair and IAF’s new head.

Similar events occurred at ADF, though its employees prevented Department of Government Efficiency (DOGE) employees from entering its premises—that is, until DOGE brought U.S. Marshals as backup. Right before that, in early March, ADF’s board in an emergency meeting selected Ward Brehm, another board member, as ADF’s president. The government claims it fired all the ADF board members before they selected Brehm, but the emails purporting to remove all the board members but Brehm were not received (they were apparently sent to incorrect email addresses). (I do not address whether agency officials need actual notice of removal, an issue in the ADF litigation.) Brehm did receive an email from the White House Presidential Personnel Office (PPO) firing him from the board in late February. As with IAF, President Trump named Marocco as an acting board member of ADF, who again picked himself as the organization’s new president.

The Institute of Peace, a “charitable-governmental hybrid” dedicated to preventing and resolving conflict around the globe, has a similar but not identical structure to IAF and ADF, with a 15-member board—including 12 Senate-confirmed picks, with statutory removal protections, and the secretary of state, secretary of defense, and the president of the National Defense University (NDU) (or particular designates)—that picks the president of the organization. Although President Trump recently fired many board members, some remained, including Secretaries Marco Rubio and Pete Hegseth and NDU President Peter Garvin, who have most recently picked DOGE worker Nate Cavanaugh as acting president. While these events raise important legal questions, including about the procedures to select Cavanaugh, they are not the same ones presented by IAF and ADF.

Aviel and Brehm have sued. (IAF grantees have also sued.) Both of their cases raise two primary issues:

• Can the president fire an inferior officer chosen by a Senate-confirmed board?
• Does the president have inherent authority under Article II of the Constitution to name temporary officials outside the Vacancies Act?

After addressing each of these issues (but ignoring the arbitrary and capricious challenges Aviel and Brehm have brought under the Administrative Procedure Act), I turn to the pending litigation and consider the ramifications for acting officials and agency governance if the courts endorse the administration’s actions. In short, if the president can name acting officials to multi-member boards under Article II—with no congressional permission—where he has created the vacancies, he can ignore the Constitution’s Appointments Clause.

Can the president fire an inferior officer selected by a Senate-confirmed board?

Many scholars and courts have considered whether the president can fire a Senate-confirmed presidential appointee (and a presidential appointee without Senate confirmation). The answer is clearly yes for appointees lacking statutory removal protections that cannot be assumed because of an entity’s functions. Thus, I was legally fired from the Council of the Administrative Conference of the United States on Jan. 21, despite a three-year term. (I would have resigned because of the case law but was not given that opportunity.) And for those with explicit (or inferred) removal protections, the courts are increasingly questioning such limits on the president—including for leaders of single-headed agencies and (for now, down the Article III hierarchy) for leaders of multi-headed agencies.

While judges and scholars fiercely debate whether originalism buttresses broad presidential removal (I side with Justice Elena Kagan and others that it does not), that conflict centers on principal officers picked by the president. Two leading proponents of originalism supporting unfettered presidential firing cabin off “inferior executives” from their analysis. While they note that “some sources suggest that the President has less authority over inferior officers and that Congress has more,” they also posit that “from the Constitution’s earliest days, many politicians and judges supposed that the President could remove all executive officers, including inferior officers.”  

Here, as specified by Congress, there is an inferior officer picked by a board. (The parties have agreed that the board members were principal officers, and Aviel and Brehm were inferior officers—and that the president could fire the board members.) In the 19th century, in United States v. Perkins, the Court determined that when Congress gave appointment power to a department head for an inferior office, Congress could restrict removal authority. (The Supreme Court treated this decision as binding in Seila Law v. CFPB.) The U.S. Court of Appeals for the D.C. Circuit held over four decades ago that “the power to remove is held by the appointing authority, and only by the appointing authority. Absent relevant legislation, this continues to be the rule to the present day.” More recently, the Supreme Court in Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB) noted: “Under the traditional default rule, removal is incident to the power of appointment.” In that case, the president picked Securities and Exchange Commission (SEC) members (with the Senate’s consent), and the SEC picked PCAOB members. If the president could fire the PCAOB members directly as inferior officers, there would have been no need for the Court to determine that double for cause removal protections violated the separation of powers.

In light of these issues, it is not surprising that the administration is arguing that Marocco, allegedly as acting board member of each entity, removed Aviel and Brehm. Both Aviel and Brehm contest that Marocco did fire them as both received prior emails from PPO invoking President Trump as the decision-maker. If courts determine that the removal was done by Marocco, the issue then becomes whether Marocco was a proper acting board member.

Can the president name an acting official outside the Vacancies Act or agency succession provision, relying solely on Article II?

The Vacancies Act and specific agency succession provisions govern the use of acting officials in many federal agencies. When both are present, the administration typically can choose between them. For example, the first Trump administration used the Vacancies Act for a temporary head of the Social Security Administration; the Biden administration relied on the agency’s succession provision for an acting leader. In Hooks v. Kitsap Tenant Support Services, the Ninth Circuit determined that because the National Labor Relations Act (NLRA) “specifically provides for the temporary designation of an Acting General Counsel in the event of a vacancy,” neither the NLRA nor the Vacancies Act are the “exclusive means of appointing an Acting General Counsel of the NLRB.”

With IAF and ADF, neither option is available. There is no succession provision permitting acting service for either board in the respective agency’s statute. With no specific provision and outside of the Recess Appointments Clause, the Vacancies Act becomes “the exclusive means for temporarily authorizing an acting official to perform the [exclusive] functions and duties of any [Senate-confirmed] office ... .” But the Vacancies Act does not apply to either entity’s board of directors.

As the district court noted in the Aviel case, the Department of Justice’s Office of Legal Counsel (OLC) ignored its “prudential” policy to not “opin[e] on questions likely to arise in pending or imminent litigation involving the United States,” and publicly issued an opinion in mid-March (three weeks after the firings, though it gave advice to the White House before it named Marocco as an acting board member) that argued that “the FVRA does not limit the President’s authority to designate acting Board members.” It relied on the text of 5 U.S.C. § 3349c, which starts: “Sections 3345 through 3349b [of the Act] shall not apply” to these entities’ boards. But Section 3348(d)(1) explicitly provides: “An action taken by any person who is not acting under section 3345, 3346, or 3347, or as provided by subsection (b), in the performance of any function or duty of a vacant office to which this section and sections 3346, 3347, 3349, 3349a, 3349b, and 3349c apply shall have no force or effect.” (It also says such an action cannot be ratified.) Thus, Section 3348(d)(1) includes these board positions from 3349c. OLC concedes, as it must, that “subsections 3348(b)(1) and (d)(1) arguably could be read to suggest that Congress placed agencies led by multimember boards outside the scope of the FVRA in order to preclude the President from designating acting Board members.”

Under the government’s statutory reading, the president can appoint an acting official to the board, but arguably any action by the acting official would not have effect and could not be ratified. OLC posits that subsections b and d of Section 3348 do not override the exclusion in 3349c because those sections govern only where the Vacancies Act or another specific statutory succession provision applies. But the government’s interpretation of the Vacancies Act reads out 3349c from 3348(d), by arguing that the voided actions do not apply to multi-member entities even though the penalty provision explicitly refers to multi-member slates of Senate-confirmed appointments. It seems even if the provisions are in conflict, the more specific one—3348(d)—should govern.

The president also asserts that he has inherent power under Article II to name acting board members without the advice and consent of the Senate. He does not have such authority, at least outside an emergency situation. If the president has such power, the Vacancies Act would seem to violate the Constitution as it limits the president’s ability to name acting officials who can carry out the full duties of a covered Senate-confirmed position when it is vacant. The claim that the Vacancies Act is unconstitutional across the board would conflict with the Supreme Court’s decision in NLRB v. SW General, Inc. (Scholars and courts do debate whether the Vacancies Act’s allowance of nonconfirmed people in principal offices violates the Appointments Clause, after some period of time.) In addition, such a position would clash directly with longstanding congressional practice: Congress has enacted Vacancy Acts since 1792. Jack Goldsmith has explained why “Congress has greater authority over acting replacements for a fired IG than it does over the president’s authority to fire an IG in the first place.”

Here, the president seems to claim that he has inherent authority under Article II to name acting officials to principal offices only when the Vacancies Act does not apply. Specifically, OLC in its latest opinion claims that the president’s take care “obligation conveys upon the President the concomitant power to name acting officials when necessary to fulfill his constitutional duties, at least where no statute precludes it.” I believe the better interpretation of the Vacancies Act precludes it, but even under the administration’s reading of the statute, that assertion, even if Marocco’s service cannot “continue indefinitely” according to OLC, depends on an implausible interpretation of Article II—one that has not been accepted by any court.

To be sure, the attorney general posited, more than a century ago, that the president may have such power. After President Clinton named an acting staff director of the Civil Rights Commission (CRC), years before the 1998 Vacancies Act was enacted, OLC did conclude that the Constitution permitted the action, and that the CRC could not veto it. OLC noted: “The President’s take care authority to make temporary appointments rests in the twilight area where the President may act so long as Congress is silent, but may not act in the face of congressional prohibition.” In George v. Ishimaru, a district court rejected Clinton’s action, saying “[n]o court has ever recognized that the President has such inherent authority.” (That order was later vacated and the appeal was dismissed as moot). OLC tried again in 2001, advising that the president could both remove a staff director and appoint an acting one. Even accepting OLC’s argument, the CRC’s staff director, whom OLC viewed as “not a constitutional officer,” is chosen by the president, with concurrence of a majority of the CRC’s commissioners (only half are Senate-confirmed). Here, the boards of IAF and ADF are entirely Senate-confirmed (and qualify as principal offices), and they pick the organizations’ head, an inferior officer.

Most critically, no court has accepted this Article II argument. In 1973, a district court in Williams v. Phillips, which involved an acting director of the Office of Economic Opportunity (a Senate-confirmed position not covered by the then-governing Vacancies Act), commented somewhat extensively on the argument. It first noted: “Whatever the merits of the argument finding an interim appointment power in the President may be, it is clear from the defendant’s own citation of authority that that power, if it exists at all, exists only in emergency situations.” (It found no emergency situation in the case.) It then described “[s]everal constitutional problems ... presented by a temporary appointive power of the President as interpreted by the defendant.” The court of appeals denied the government’s request for a stay of the district court’s ruling (with language arguably supporting the merits determination and no language holding the opposite). (Goldsmith has advanced a narrower reading of Williams, but he does not cite a case permitting broad temporary appointment authority to Senate-confirmed roles.)

The Supreme Court implicitly foreclosed such Article II authority for acting leaders in vacant Senate-confirmed roles in its SW General decision: “Since President Washington’s first term, Congress has given the President limited authority to appoint acting officials to temporarily perform the functions of a vacant [Senate-confirmed] office without first obtaining Senate approval.”

In short, in Justice Robert Jackson’s Youngstown framework, the White House claims we are in the “zone of twilight” because the Vacancies Act does not apply to the IAF and ADF boards.  (Aviel and Brehm argue that the Vacancies Act puts us in the third category, where the president’s “power is at its lowest ebb.”). But there is a statute governing the selection of the board of directors of each entity, which comports with the Appointments Clause. If the president can avoid the nomination and confirmation process in this way, he will be avoiding his constitutional mandate to nominate officers for positions “established by Law,” and he will be intruding on Congress’s constitutional powers, including the Senate’s confirmation power.

Does the president’s constitutional “take care” duty “to keep the government running” (in OLC’s phrasing), however, override the Appointments Clause? Considering “the imperatives of events and contemporary imponderables” of Justice Jackson’s second category (and even in the third category), imagine a war-time situation where the secretary of defense has died suddenly and the position is excluded from the Vacancies Act (this actually has never been the case). Here, in this imagined scenario, the president may have power to name a temporary acting official. But we are not in such a situation. The president has created the vacancy. Moreover, these congressionally designed corporate bodies do not fall so close to the White House as to require the Appointments Clause to be ignored.

If the president wishes to name new board members, who can then pick new heads of these organizations, he should submit nominations to the Senate and wait for them to be confirmed.

Status of Litigation and Nominations

Brehm lost in his effort to get a temporary restraining order on March 11. District Court Judge Richard J. Leon determined that “Brehm has not demonstrated either that his alleged harm is ‘both certain and great’ or ‘beyond remediation’” because “Brehm has not identified any cognizable irreparable harm to himself as opposed to potential harm to the agency and its partners.” Lacking the irreparable harm required for a temporary restraining order (TRO), the court denied the request. Judge Leon contrasted the allegations of ADF and IAF: “Here, the mere possibility that defendants will follow the same path as they did with IAF”—which Brehm claimed reduced IAF to “ashes”—“falls short of the ‘imminent threat of injury required to grant a TRO.’”

Interestingly, the judge commented on the merits, noting that “Brehm raise[s] a colorable Appointments Clause claim.” He wrote:

The Court has not found—nor has the Government identified—any … statute that provides President Trump with the authority to appoint Marocco as the Acting Chairman of the Board. Defendants’ reliance on the Office of Legal Counsel’s ‘long position’ that President Trump’s authority to appoint Marocco as an acting Board member ‘comes down to his Article II authority,’ ignores Congress’s amendments to the statutes authorizing the President to fill vacancies and longstanding Supreme Court precedent.

The case now proceeds to a decision about summary judgment, with a hearing set for April 16.

Aviel obtained a preliminary injunction from Judge Loren L. AliKhan, also in the U.S. District Court for the District of Columbia., on April 4, satisfying all factors for such relief. The judge reinstated her as head of IAF and “void[ed] all decisions Mr. Marocco has made on the IAF’s behalf because he lacked the authority to make them.” In addition to finding irreparable harm because the administration wishes to reduce IAF to “a pile of rubble” and the public interest favoring Aviel because the reduction “flout[s] Congress’s mandate,” the district court determined that the president could not remove Aviel and could not appoint Marocco as an acting board member. On the acting issue, the court interpreted the Vacancies Act as the exclusive mechanism for filling vacancies (outside a specific agency provision and the Recess Appointments Clause) and, because it does permit acting officials in multi-member boards, determined that any actions by Marocco would be void under the statute. It also rejected that the president has inherent Article II power to appoint acting officials. The court stressed that this was a “problem of the President’s own making.” The government has asked the D.C. Circuit for a stay pending its appeal; briefing on the stay will be completed on April 15.

Unlike the challenges to the removals at the NLRB and MSPB, these cases cannot be resolved on remedial grounds. Specifically, while the Supreme Court may hold it lacks the power to reinstate the fired members of those other agencies (and can only provide back pay if it finds the removals unjustified), the IAF and ADF lawsuits ask for Marocco’s actions to be voided under the Vacancies Act. That remedy does not raise “questions about the remedial authority of the Article III courts,” concerns flagged by D.C. Circuit Judge Neomi Rao, dissenting from the court’s en banc decision not to stay the district court’s order to reinstate Wilcox and Harris.

There is now the issue of Marocco’s departure from the State Department. Presumably, he no longer serves as an acting board member for IAF and ADF, although nothing has yet been reported on those roles as of April 13. Before leaving State, he had named new heads of those organizations after initially selecting himself. The departure should not moot the litigation as Marocco’s past actions are being challenged.

Interestingly, the U.S. Attorney’s office for Washington, D.C., and not the Justice Department’s Federal Programs Branch, which arguably has more expertise on the Vacancies Act, took these cases at the district court level. Perhaps, this staffing is due to departures at the branch. It could also result from less media attention to these cases, despite their more assertive claims of executive power. But Main Justice’s Civil Appellate staff is handling IAF’s appeal.

Under the agencies’ statutes, Senate-confirmed board members can replace their heads, who then must operate the agencies in compliance with congressional mandates (and presidential directives). President Trump has nominated Russell Vought, head of the Office of Management and Budget to the boards of both agencies; Laken Rapier, a State Department appointee, to ADF’s board; and Kenneth Jackson, another State Department appointee, to IAF’s board. These nominations were placed on the privileged calendar, but Democratic senators requested, after Brehm’s TRO loss, that they be referred to the Foreign Relations committee. Once these nominations are confirmed, the litigation will presumably be mooted.

Ramifications

The president currently possesses, with Congress’s permission, immense power to name acting leaders (and use delegations of authority) outside of multi-member boards. Without a pending nomination, an acting leader can serve for only 210 days (300 if it is at the start of a new administration). Delegations don’t have time limits, though could face Appointments Clause challenges. For instance, Cameron Hamilton essentially has headed up the Federal Emergency Management Agency (FEMA) since Trump returned to the White House—not as an acting official (as he doesn’t fall into any of the three permitted pools under the Vacancies Act) but under a delegation order assigning nonexclusive tasks to him as the senior official performing the duties of FEMA administrator. In this role, he doesn’t have to meet the mandates Congress imposed on the FEMA administrator after Hurricane Katrina. (I favor cutting back on some of that power for acting officials, such as would occur under the Accountability for Acting Officials Act, and, at least, making delegations more transparent.)

But the president cannot typically use acting officials and delegations for multi-member boards. Under the administration’s Article II position, the MSPB need not have lacked a quorum from January 2017 until March 2022, leading to a backup of nearly four thousand cases. To be fair, it is not good to have an agency not fully functioning for so long. But the Constitution builds in some inefficiencies. Congress could permit temporary service in these positions (assuming that such interim service makes these jobs inferior offices) but has declined to do so, presumably because it views these agencies as more independent from the White House. However, if Humphrey’s Executor is overturned (as seems likely), Congress may amend the Vacancies Act to include these jobs. More likely, it will not, as quorum requirements and our settled interpretation of the Vacancies Act (which excludes such agencies) may produce evenly-divided commissions when the parties split control of the White House and Senate—arguably closer to Congress’s plan for independent bipartisan agencies than what exists now. In other words, under quorum mandates and divided government bargaining, we could see more two-member commissions, with one Democrat and one Republican. The president would hesitate to fire the opposing party member with a two-member quorum requirement (as the Senate could refuse to confirm a second same party member).

Under the government’s ambitious theory of Article II, whether or not an agency was covered by the Vacancies Act, the president could name an acting official in a wide swath of scenarios with no statutorily imposed time limit. That would read out the Appointments Clause (and Recess Appointments Clause) from the Constitution. While I am open to a narrower theory, which allows acting officials in crisis situations intimately tied to presidential power where the president did not create the crisis, that’s not at play at IAF and ADF.