As U.S. President-elect Donald Trump moves to set up a more forceful presidency than in his first term, he is choosing loyalists for his Cabinet and considering a tool known as recess appointments to skip over Senate confirmations for even some of the most powerful positions in U.S. government.
Trump over the weekend demanded that Republican leaders in the Senate, who will hold a majority in the chamber next year, agree to allow recess appointments. It would be a significant shift in power away from the Senate, but Trump is returning to Washington with almost total support from his party, including the more traditional Republicans who still hold sway in the chamber.
Their commitment, however, is being tested now that Trump has turned to picked people outside the Republican Party mainstream like former Reps. Matt Gaetz of Florida and Tulsi Gabbard of Hawaii for top positions, as well as noted vaccine skeptic Robert F. Kennedy Jr.
It quickly became apparent this week that figures like Gaetz, who Trump announced as his choice for attorney general, and Kennedy, nominated for health secretary, may struggle to gain majority support from the Senate — even though Republicans will enjoy a 53-seat majority. But that may not matter if Trump is able to use recess appointments.
How do recess appointments work?
The Senate, as set up by the U.S. Constitution, holds an important role in confirming — or rejecting — high-level officials like Cabinet positions, judges and ambassadors. It’s part of the government’s checks and balances that ensures the president does not get to unilaterally rule. However, there is a clause in the Constitution that allows presidents to fill out their administrations while the Senate is in recess.
During the nation’s early history, Congress would take months-long breaks from Washington, and presidents could use recess appointments to avoid having an important job go unfilled. But more recently, the process of recess appointments has been featured in partisan fights with the president.
President Bill Clinton made 139 recess appointments and President George W. Bush made 171, though neither used the process for top-level Cabinet positions, according to the Congressional Research Service. President Barack Obama tried to continue the practice, using it 32 times, but a 2014 Supreme Court ruling put a check on the president’s power to make recess appointments.
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The Supreme Court unanimously ruled that the Senate has to recess or adjourn for 10 days before a president can make unilateral appointments. That’s resulted in a practice where the Senate — even during weeks-long breaks from Washington — still holds pro-forma sessions where one senator opens and closes the chamber, but no legislative business is conducted.
The House also holds some power over recess appointments by refusing to allow the Senate to adjourn.
Why is Trump demanding recess appointments?
Trump envisions becoming a president who is much stronger and forceful than perhaps any before him.
While still president in 2020, Trump threatened to use recess appointments after Democrats had slowed the Senate from confirming his nominees. He threatened to use a presidential power in the Constitution to adjourn both chambers of Congress on “extraordinary occasions” and when there is a disagreement between the House and Senate on adjourning.
When Trump becomes president again next year, he will be working with Republicans who hold a majority in the House and Senate and are promising to back his agenda. But the demand for recess appointments allows Trump to flex his political power and potentially ram through even the most controversial choices for his administration.
Sen. John Thune, who was elected as the next Senate majority leader this week, is pledging to keep “an aggressive schedule until his nominees are confirmed.” Thune, a South Dakota Republican, is also not taking recess appointments off the table.
To allow Trump to make the appointments, Republican senators would have to pass a motion of adjournment with a simple majority vote, though Democrats would likely do everything in their power to prevent it. It is also not clear if such a move would be fully supported by GOP senators.
Would recess appointments work?
It’s not clear. The announcements of Gaetz and Gabbard this week sputtered the Senate into life, with some GOP senators issuing reminders of the importance of their “advise and consent” role in choosing the president’s Cabinet.
Republican Sen. John Cornyn, who just days before suggested he may be open to allowing Trump to make recess appointments as he ran unsuccessfully for Senate leader, told reporters Thursday,
“Obviously, I don’t think we should be circumventing the Senate’s responsibilities, but I think it’s premature to be talking about recess appointments right now.”
Still, there are very few, if any, Republicans remaining who dare openly defy Trump. GOP senators are planning to begin hearings on Trump’s Cabinet nominees as soon as the new Congress begins on Jan. 3.
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