WASHINGTON – The mood in Congress among Republicans following Donald Trump’s announcement of former Rep. Matt Gaetz (R-Fla.) as his pick for attorney general was best summed up by Rep. Mike Simpson (R-Idaho): “Ben are you shitting? me?”
Several Republicans said Wednesday they were “shocked” and skeptical that the Senate would approve Gaetz next year — but there are rumblings on Capitol Hill And among conservatives that Trump is not “fooling” them and would exercise unprecedented powers to bypass the Senate and install his controversial pick anyway.
The Constitution gives the president limited authority to make appointments when Congress is not in session, and also gives him the power to prorogue the House of Representatives and the Senate, although no president has ever done this to staff his government.
Trump threatened to suspend Congress to make arrangements by the end of his first term, and some fear he will actually implement the plan in his second term. And he has already called on the Senate to let him make recess appointments so Democrats can’t delay the confirmation process.
“This is what they did four years ago, and we can’t let it happen again,” Trump said wrote on Truth Social on Monday. “We need vacancies IMMEDIATELY!”
There are indications that the Senate will not cooperate with Trump’s demands that Congress get out of his way. Asked about recess appointments on Wednesday, incoming Senate Majority Leader John Thune (R-S.D.), who just defeated Trump’s choice of Sen. Rick Scott (R-Fla.) for the job, did not say outright whether he would do that. support or opposition to Trump bypassing the Senate, but suggested he would prefer the House retain its role in confirming appointments.
“What we’re going to do is make sure that we process his nominees in a way that puts them in those positions so that they can implement his agenda. How that happens remains to be seen,” Thune said. “Clearly, we want to ensure that our committees hold confirmation hearings as they normally do.”
So Trump’s recess nomination plan would have to be pitted against Senate Republicans if he thinks they would be unwilling to approve his nominees. How would it work? First, it’s possible that the threat alone will cause Senate Republicans to support Gaetz. Many of them already do that.
Sen. Tommy Tuberville (R-Ala.) said Trump deserved to get his chosen team for his administration.
‘That’s not it [for] us to determine that,” he told Fox News. “This is the last chance we get to save this country. If you want to get in our way, that’s fine, but we’re going to try to get you out of the Senate too if you do that.”
If Republicans stand up to Trump, they could face a major constitutional showdown. Article II, Section 3 of the Constitution states that “in case of disagreement between them, as to the time of suspension, [the president] may postpone them until such time as he deems appropriate.’ The president could therefore exercise this power to adjourn both chambers of Congress if one chamber votes to recess and the other does not.
While no president has done this before, there is Supreme Court precedent that this power does indeed exist. In 2014, the Supreme Court ruled NLRB v. Canning that presidents do have the power to make recess appointments, but they cannot do so during short recesses in the Senate or when the Senate is holding pro forma sessions. The majority opinion by Justice Stephen Breyer, joined by the liberal justices and Justice Anthony Kennedy, contained one line that addressed exactly this scenario: “The Constitution also gives the president (if he has enough allies in Congress) a way to to enforce recess.” The line contained a reference to the above constitutional provision.
Let’s say the Senate doesn’t want to give up its advice-and-consent powers to confirm executive branch nominees, as seems likely. Republicans in the House of Representatives could theoretically vote to adjourn the House on a certain date and for a certain time. If Senate Republicans refuse to do so, Trump could, again, theoretically, resolve the conflict by adjourning both the House of Representatives and the Senate.
Temporarily dissolve Congress to circumvent Senate opposition to its nominees and make recess appointments would theoretically give Trump unchecked power to staff the entire executive branch. It would be a step towards fulfilling his desire to be a ‘dictator on day 1’.
This sounds crazy because it is crazy. No president has ever exercised this power before. It wouldn’t be easy, or even smart, to pull this off either.
First, it would take a majority of Republicans in the House of Representatives to vote for a resolution to adjourn the House. With a likely majority of 221 Republicans to 214 Democrats, they would need to retain all but four members of their conference. If this maneuver is used to sneak Gaetz past the Senate, will the apparently large number of Republicans in the House of Representatives who hate his guts go along with it?
Simpson’s outburst shows that there are some early signs that the answer to this is “no.”
Rep. Patrick McHenry (R-N.C.), right, watches as Rep. Richard Hudson (R-N.C.), left, pulls back Rep. Mike Rogers (R-Ala.) as Rogers yells at Rep. Matt Gaetz (R-Fla.) , and others during the 14th round of voting for speaker as the House meets for a fourth day to try to elect a speaker and convene the 118th Congress on January 6, 2023. The Washington Post via Getty Images
Second, Republicans’ running around in the Senate would likely anger them. Does Trump want to start his presidency by humiliating the Republicans in the Senate? Knowing his history of humiliating supplicants and sending a mob to attack Congress, he might know that.
Third, the plan would immediately end up in court. As has happened during Trump’s political reign, the courts should address a constitutional provision that has remained essentially silent for more than 200 years. The only word on this comes from Breyer’s opinion in NLRB v. Canning. But the Supreme Court’s newer conservative members may disagree with that view.
In that case, Justice Antonin Scalia wrote a concurrence, joined by Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas, who agreed with the majority’s conclusion but argued that the president’s power to appoint during the recess is much more limited than the court’s current interpretation. The conservative justices could use such a case to limit the appointment to power during the recess to only apply when a vacancy becomes available during a recess. Now, this shouldn’t hinder Trump’s potential delay plans, as it depends on the timing of the delay and the vacancies, but it shows that the court majority may not want to accept this plot at face value. (Of course, Roberts’ decision in Trump v. US on presidential immunity shows that the court is willing to defer to Trump’s will.)
There are many legal issues that are simply unknown to this plot. What is a disagreement about postponement? If the Senate simply ignores the House resolution to adjourn, does that count as a disagreement? How long should the Senate fail to respond to the House of Representatives resolution before disagreement arises? These questions have never been litigated and may take some time to resolve.
In the meantime, Trump’s picks would enjoy the same powers as Cabinet officials confirmed by the Senate. According to a 2015 Congressional Research Service report“A confirmed appointee and an appointee during the break have the same legal authority and receive the same pay.”
Democrats, meanwhile, are already highlighting the cowardice of the Republican Party if they choose to bend the knee.
“’The ‘Crawl Test’: Autocrats like to make followers crawl,” said Sen. Sheldon Whitehouse (D-R.I.) a message on social media on Wednesday. “Gaetz and [Tulsi] Gabbard [for director of national intelligence] nominations will test Republican senators’ willingness to root for Trump. Must be interesting.”
