Preceding a lawsuit filed against President Donald Trump and members of his administration, the Department of Justice wrote in a memo that the president could, indeed, designate acting board members of the Inter-American Foundation (IAF) without Senate approval.
The DOJ's Office of Legal Counsel (OLC) wrote Friday that in the absence of a statute, "a President's responsibility to 'take Care that the Laws be faithfully executed' grants him the concomitant authority to designate acting officers through whom he can temporarily maintain the constitutional chain of supervision over an organization created by Congress to perform executive functions."
Sara Aviel, the ousted head of IAF, filed a lawsuit on Monday anyway, asserting she was unlawfully removed and that her replacement, Peter Marocco, was unlawfully seated.
"Marocco did not, and does not, have statutory authority to hold any of those positions. He is not Chair of the Board — or a member of the Board for that matter — because President Trump did not follow the required process for appointing Marocco with advice and consent of the Senate," read the lawsuit.
In an executive order on Feb. 19, Trump targeted the IAF, the U.S. African Development Foundation, and the United States Institute of Peace for closure in his ongoing effort to shrink the size of the federal bureaucracy. The order reduced the "performance of their statutory functions and associated personnel to the minimum presence and function required by law."
Monday's lawsuit filed by Aviel names several members of the Trump administration, including Marocco, who it says "installed himself as Chair of the Board of the IAF and acting President and CEO."
The OLC on Friday said statutes "permit the president to remove board members" but that they did not address appointing members to "carry out the foundations' statutory functions."
"You asked us whether, in these circumstances, the President has authority to designate acting Board members to supervise the foundations' operations temporarily before the President can appoint permanent Board members with the Senate's advice and consent. Consistent with advice this Office has provided for decades, we confirmed that he does," the OLC wrote.