Can the President Appoint Principal Officers Without the Senate?

Lambert here: Extremely detailed.

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.

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 … .”

Importantly, the Federal Vacancies Reform Act of 1998 (Vacancies Act) applies to neither agency.

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.