As President-elect Donald Trump rolls out his controversial Cabinet picks, he has demanded the Republican-led Senate take extended breaks to allow him to make recess appointments rather than subject his nominees to an extensive public vetting process and upper chamber approval.
Trump's demand not only tests congressional Republicans' willingness to uphold checks and balances over bending to the president-elect's wishes but, if met, would be an affront to the Constitution, which empowers the Senate to provide "advice and consent" over the president's key executive branch nominees, experts told Salon.
"It's certainly one of the biggest attempts at a power grab that we've seen. He wants not to just recess appointment, he wants to basically do an end-around around the Senate's role in advice and consent," said Josh Huder, a senior fellow of the Government Affairs Institute at Georgetown University.
Such an action would "undermine" Congress' power of personnel and its ability to shape the federal government and the Judiciary, he said in a phone interview. "It would be something that would be unprecedented in American history — there's no question."
Since winning the presidency earlier this month, Trump has picked potential Cabinet members at a lightning quick pace, raising the question of whether he could bypass Congress to install his selections. His nominees, a swath of loyalists with contentious positions, have drawn widespread pushback — even from Republican elected officials.
Chief among the president-elect's controversial picks is former Rep. Matt Gaetz, R-Fla., who was nominated for attorney general despite being investigated by the Justice Department and the House Ethics Committee over allegations that he paid to have sex with a 17-year-old girl, which he denies.
Trump also chose former presidential candidate Robert F. Kennedy Jr. to head the Department of Health and Human Services, and ex-Rep. Tulsi Gabbard, D-Hawaii, to oversee the nation's intelligence services. Many in the medical community have harangued Kennedy Jr.'s appointment over his outspoken criticism and skepticism of vaccines, while national security experts have sounded alarms over Gabbard's ties to Russia and Syria.
Though they could receive Senate backing from a traditional confirmation process, the GOP's narrow 53-seat majority does not guarantee it, especially as some senators question the choices.
David Alvis, a professor of political science at Wofford College in South Carolina, told Salon that making recess appointments offers the incoming Trump administration a "stronger hand" over the appointees than the confirmation process typically affords.
"It's certainly one of the biggest attempts at a power grab that we've seen."
By circumventing Senate confirmation, "you're not having to negotiate the terms of the appointee. You don't have to come up with deals or bargaining with members of the Senate — especially Senate holdouts — so that gives you greater strength over it," he said in a phone interview. The recess appointment concluding at the end of the legislative session creates a "threat of non-renewal of that appointment" that "allows the executive a little bit more control over the recess appointee."
Trump's push for recess appointments ahead of his second term could "easily" be anticipated based on "maneuverings toward" this action in the later years of his first term, Alvis argued.
Trump made a quick appointment of then-Office of Management and Budget Director Mick Mulvaney, who the Senate had already confirmed for that role, to acting director of the Consumer Financial Protection Bureau in late 2017 to avoid a confirmation process for a different nominee. He also threatened to invoke his constitutional power to adjourn Congress to push through nominees while lawmakers were out of Washington, D.C., during the early months of the pandemic.
More than 1,000 executive branch roles are subject to Senate approval in addition to the Cabinet positions, according to The Washington Post. The Constitution authorizes the president to fill vacancies if Congress is in recess, and presidents of both major parties have done so. Strict rules and procedures over both recessing and making recess appointments have made outfitting a Cabinet with such picks a challenge.
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In 2014, the Supreme Court held that the upper chamber had to be adjourned for at least 10 days before a president could make an appointment following former President Barack Obama's use of a short recess to fill three empty positions on the National Labor Relations Board.
Either chamber of Congress requires approval from the other to recess for more than three days, and with the Republican majority in the House narrow at just 218 seats, calling a recess could be difficult.
Both chambers usually convene pro forma sessions, brief procedural meetings in which no formal business is conducted, during recesses specifically to block the president from making recess appointments and sidestepping congressional approval.
Senate Democrats could also slow down a vote to adjourn by objecting to ending the session and upending the typical unanimous vote sought for such decisions. While this would require overcoming a 60-vote threshold, Huder says stalling the process could run the risk of "[slowing] the institution to a crawl" and giving the majority greater incentive to "go nuclear" on majority votes.
"It's one of those situations where, if the minority goes too far in gumming up the works, the majority will have incentives to press their prerogatives and do things by majority vote," he said. "That hasn't been done in history yet, but obviously we're getting to some territory in the not too distant past where majorities have been considering these types of things."
The other avenue left open to Trump — though historically unprecedented — would be to attempt to instruct Congress to recess in order to install his nominees without their approval. The Constitution empowers the president to adjourn Congress if the chambers can't agree on the timing of a recess.
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Huder said that whether Trump is able to accomplish either means of bypassing the Senate comes down to the votes — and the president-elect is unlikely to have the broad support from lawmakers needed to push Congress to adjourn for more than 10 days or create the circumstances that would compel that unilateral, presidential action.
"That is possible, but I don't think it's very likely at all," Huder said. "In fact, I think it's very, very, very, very, very unlikely that Congress actually allows this to happen."
Sen. Cory Booker, D-N.J., told the Post that Republicans allowing Trump to circumvent the Senate's advice and consent role would be "frustrating."
“I think people on both sides of the aisle would express that and from what I’m hearing from senators on both sides of the aisle, is that folks are not going to let that happen,” he said.
Senate Republicans have also had mixed responses to the suggestion that Trump's nominees should subvert the confirmation process.
“I’m hesitant to give up any aspect of our role when it comes to advice and consent. That’s what we do,” Sen. Lisa Murkowski, R-Alaska, who has signaled her opposition to Gaetz’s nomination, told the Post.
Sen. Josh Hawley, R-Mo., told the outlet that he believed Trump is within his constitutional authority to make recess appointments, adding that it could push Republican leadership to confirm nominees quickly and send a message to Democrats should they seek to interfere with Trump's nominees.
House Speaker Mike Johnson, R-La., on Sunday also left open the possibility of adjourning Congress to allow Trump to appoint his Cabinet nominees outside of the confirmation process, depending on how the Senate moves.
In the grand scheme, Huder said, Congress will have to play a role in whether Trump can circumvent the Senate. The upper chamber's advice and consent role extends back to the framing of the Constitution and is "at the core of the constitutional construct."
"When you look at the Constitution, it's really Congress's Constitution," he said, noting the legislative body is empowered with "the most power and the most authority."
"You can't just prorogue Congress like the king could prorogue Parliament back in the day," he added. "You can't just get rid of them. It requires their consent at some level."
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