Can Trump bypass the Senate to ram through controversial nominees?
| Washington
As the Senate grapples with whether to confirm some of President-elect Donald Trump鈥檚 most controversial Cabinet selections, the question isn鈥檛 just whether they鈥檒l have enough votes to be confirmed 鈥� but if those votes will happen at all.
Mr. Trump has repeatedly Senate Republicans to let him make recess appointments if his choices can鈥檛 get through the chamber, which will have a narrow Republican majority when the new Congress convenes in January.
Some of Mr. Trump鈥檚 allies are arguing that an obscure, never-used clause of the U.S. Constitution could empower him to force the Senate to go out of session 鈥� without senators鈥� consent 鈥� in order to ram through his most polarizing picks for top offices.
Why We Wrote This
The U.S. Senate has always voted on whether to confirm a president鈥檚 nominees for major posts. It鈥檚 a key check on presidential power. President-elect Donald Trump鈥檚 allies think they may have a work-around.
The basis for this claim is a particular interpretation of , which says if the Senate and House can鈥檛 agree on the time period for adjournment, the president 鈥渕ay adjourn them to such Time as he shall think proper.鈥�
The question is whether Mr. Trump could utilize this language by getting the Republican-controlled House to vote to recess, and then ruling to adjourn Congress if the Senate doesn鈥檛 agree. That could let him put his most controversial nominees at the head of powerful agencies 鈥� like Tulsi Gabbard for director of national intelligence or Robert F. Kennedy Jr. for secretary of health and human services 鈥� without any say from senators.
Matt Gaetz鈥檚 decision to withdraw from consideration for attorney general in the face of Senate opposition shows that the confirmation process is a real obstacle 鈥� and one that Mr. Trump could grow more frustrated with in the coming months.
House Speaker Mike Johnson has indicated he may be open to recess appointments. In a Sunday interview on Fox News, Speaker Johnson said that he is 鈥渟ympathetic鈥� to arguments that the move might be necessary if some of Mr. Trump鈥檚 nominees face roadblocks to confirmation in the Senate.
鈥淚 wish the Senate would simply do its job of advise and consent, and allow the president to put the persons in his Cabinet of his choosing. But if this thing bogs down, it would be a great detriment to the country, to the American people,鈥� . 鈥淲e鈥檒l evaluate all that at the appropriate time, and we鈥檒l make the appropriate decision.鈥�
Speaker Johnson can鈥檛 unilaterally declare the House in recess 鈥� it takes a floor vote. And given how narrowly divided the House will be in the next session, defections from just a handful of moderate Republicans could block the effort.
It鈥檚 also unclear whether the House could force the issue if the Senate simply ignores the House鈥檚 vote to recess. Any attempt at this maneuver is almost certain to be challenged in court.
Still, if it鈥檚 attempted, experts say the country would be entering uncharted waters. No president in U.S. history has tried this before. It would be a dramatic change in how government operates, essentially removing a crucial part of the checks-and-balances system created by the Founding Fathers.
鈥淣o one really knows what the limits of this clause are, because it鈥檚 never been used,鈥� says Matthew Glassman, a senior fellow at the Government Affairs Institute at Georgetown University and former longtime staffer at the Congressional Research Service.
And this potential scheme could be a sledgehammer, not a scalpel. If Mr. Trump gets a congressional recess, he could appoint whomever he wants to whatever roles he wants 鈥� potentially moving hundreds of nominees, with no say from Congress.
鈥淚 certainly would take it seriously. It is unclear to what extent the Republican leaders of the House and Senate are willing to abdicate their constitutional responsibilities and become a factotum of Trump. If they acquiesce to this, it would be changing our political system from separation of powers to more of a parliament,鈥� says Daniel Schuman, executive director of the American Governance Institute, a nonpartisan government modernization and transparency organization. 鈥淚鈥檓 really alarmed about this.鈥�
Some conservative legal scholars are sounding alarms as well. Edward Whelan, a senior fellow at the Ethics and Public Policy Center, has written multiple op-eds in recent days warning Republicans against going along with as a 鈥渃ockamamie scheme鈥� that would undermine a 鈥渇undamental feature of the Constitution鈥檚 system of checks and balances.鈥�
How Republican senators are responding
Many Senate Republicans say they want to avoid this scenario, but also seem happy to have the threat of recess appointments hanging over the process as a way to pressure fellow lawmakers 鈥� both Democrats and Republicans 鈥� who are wary of specific Trump nominations. Incoming Senate Majority Leader John Thune told reporters last week that 鈥渁ll options are on the table, including recess appointments,鈥� to circumvent resistance to Trump appointments.
鈥淭he Constitution gives the president the ability to adjourn the houses,鈥� Republican Sen. Josh Hawley of Missouri, a Trump ally, told the Monitor this week. He added that it鈥檚 鈥渘ever been done鈥� and the procedure is 鈥渁 little unclear,鈥� before offering a warning to his Democratic colleagues: 鈥淒on鈥檛 gum up the confirmation process.鈥�
Senator Hawley said that he hoped that the threat of recess appointments could pressure his colleagues on both sides of the aisle to allow the Senate to move fast on voting on the president鈥檚 appointments.
鈥淚 hope it鈥檒l convince them, yes, to move these nominations. If you want to vote no, go ahead and vote no. But let鈥檚 don鈥檛 jam this up such that we鈥檙e not able to confirm,鈥� he said.
Other Senate Republicans downplayed the likelihood of recess appointments.
鈥淚f you went and talked to a lot of the people that are being put forth for Cabinet-level positions, they don鈥檛 want to go down that route. It鈥檚 not going to happen that way,鈥� said North Carolina Sen. Thom Tillis.
鈥淭he traditional process will work 鈥� and we need to do it fast,鈥� South Carolina Sen. Lindsey Graham said when asked about recess appointments.
Outgoing Senate Minority Leader Mitch McConnell to recess appointments at a private event last weekend, though at a Tuesday press conference he disputed the 鈥渞umors鈥� that he鈥檇 made those comments. While he declined to directly say whether he thought Mr. Trump could force the Senate into recess, he indicated he saw the Senate鈥檚 advise-and-consent role as important.
鈥淚鈥檓 confident that we鈥檒l engage the same kind of vetting process that we have historically done under both parties with these nominees,鈥� he said.
Where the Supreme Court might land
This isn鈥檛 the first time recess appointments have generated controversy. Presidents of both parties have taken advantage of congressional recesses to push through picks who were mired in slow confirmation processes or who faced uphill battles. Over time, Senate leaders responded by simply refusing to officially go on recess, instead entering 鈥減ro forma鈥� sessions in which no work was being done but the Senate wasn鈥檛 technically out on recess.
Things came to a head in 2012, when then-President Barack Obama claimed the Senate actually was in recess and tried to appoint a trio of members to the National Labor Relations Board. The fight went to the U.S. Supreme Court, which ruled unanimously in 2014 that the nominations that Mr. Obama made during that three-day pro forma session were invalid. The court ruled that for a period to be considered an official 鈥渞ecess,鈥� it must be at least 10 days long.
Three conservative justices who decided that case remain on the court today 鈥� Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito 鈥� and all three joined a from Justice Antonin Scalia that advanced an even narrower view of the president鈥檚 recess appointment power. The founders viewed the Senate鈥檚 role in the appointment process 鈥渁s a critical protection against 鈥榙espotism,鈥欌�� Justice Scalia wrote. He called the recess-appointments language in the Constitution an 鈥渁nachronism鈥� from the horse-and-buggy era when it could take weeks or months to convene Congress. Even allowing recess appointments during 鈥� not just between 鈥� congressional terms 鈥渨ill have the effect of aggrandizing the Presidency beyond its constitutional bounds,鈥� he wrote.
It鈥檚 unclear whether these Republican-appointed justices鈥� views will hold firm, or shift with a Republican in the White House.
Since that ruling a decade ago, Congress has refused to go into recess, preventing presidents of either party from making recess appointments.
Other Senate work-arounds
During his first term in office, President Trump took advantage of another relatively obscure law to put several allies into key positions without subjecting them to Senate confirmation.
He used the Vacancy Act, which allows the president to temporarily appoint anyone who had already been confirmed to any position by the Senate for other roles that would normally require Senate approval. It enabled Mr. Trump to fill some top posts 鈥� including attorney general, secretary of defense, homeland security secretary, and head of U.S. Immigration and Customs Enforcement 鈥� with controversial selections who may not have been able to get through the Senate.
Traditionally, that law had been used to fill roles with placeholder appointees while nominations worked their way through the Senate鈥檚 glacial confirmation process 鈥� or to let nominees start working on an acting basis while they waited on the Senate. But for some key positions, Mr. Trump opted to just appoint his favored candidates in an 鈥渁cting鈥� status, permanently.
That was a significant departure from previous administrations. But it pales in comparison with what Mr. Trump and his allies are now considering.
Staff writer Henry Gass reported from Austin, Texas.
Editor鈥檚 note: This story was updated Nov. 21, the day of original publication, to reflect news developments.
