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): “Are you shittin’ me?”
Several Republicans on Wednesday said 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 “shittin’” them and would exercise unprecedented powers to go around 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 it also gives him the power to adjourn the House and Senate, though no president has ever done so in order to staff his administration.
Trump threatened to adjourn Congress to make appointments toward the end of his first term, and some fear he will actually follow through on the scheme in his second term. And he has already called for the Senate to let him make recess appointments so Democrats could not slow down the confirmation process.
“This is what they did four years ago, and we cannot let it happen again,” Trump wrote Monday on Truth Social. “We need positions filled IMMEDIATELY!”
There’s some indication the Senate won’t 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 had just beaten out Trump’s choice of Sen. Rick Scott (R-Fla.) for the position, didn’t outright say whether he would support or oppose Trump sidestepping the Senate, but suggested he’d prefer the chamber to maintain its role in confirming appointments.
“What we’re going to do is make sure that we are processing his nominees in a way that gets them into those positions so they can implement his agenda. How that happens remains to be seen,” Thune said. “Obviously, we want to make sure our committees have confirmation hearings like they typically do.”
So Trump’s recess appointment plot would need to be deployed against Senate Republicans if he thinks they would be unwilling to approve his nominees. How would it work? First of all, it’s possible the mere threat will cause Senate Republicans to buckle and back Gaetz. Plenty of them already do.
Sen. Tommy Tuberville (R-Ala.) said Trump deserved to get his chosen team for his administration.
“It’s not [for] us to determine that,” he said on Fox News. “This is the last chance we’re going to have at saving this country. If you want to get in the way, 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 be in for a major constitutional showdown. Article II, Section 3 of the Constitution states that “in Case of Disagreement between them, with Respect to the Time of Adjournment, [the president] may adjourn them to such Time as he shall think proper.” The president could, therefore, exercise this power to adjourn both chambers of Congress if one chamber votes to recess while the other does not.
While no president has done it before, there is Supreme Court precedent stating that this power does, in fact, exist. In 2014, the Supreme Court ruled in NLRB v. Canning that presidents do have the power to make recess appointments, but that they cannot do so during short Senate breaks or when the Senate holds pro forma sessions. The majority opinion by Justice Stephen Breyer and joined by the liberal justices and Justice Anthony Kennedy included one line addressing this very scenario: “The Constitution also gives the President (if he has enough allies in Congress) a way to force a recess.” The line included a citation to the constitutional provision above.
Let’s say the Senate does not want to give up its advice and consent powers to confirm executive branch nominees, as seems likely. House Republicans could, theoretically, vote to adjourn the chamber on a set date and for a set time. When Senate Republicans decline to do this, Trump could, again, theoretically, resolve the conflict by adjourning both the House and the Senate.
Temporarily dissolving Congress in order to bypass Senate opposition to his nominees and make recess appointments would theoretically give Trump unchecked power to staff the entire executive branch. It would be a step toward fulfilling his desire to be a “dictator on Day 1.”
This sounds nuts because it is nuts. No president has ever exercised this power before. It also would not be easy, or maybe even smart, to pull off.
First, it would require a majority of House Republicans to vote for a resolution to adjourn the chamber. With a likely majority of 221 Republicans to 214 Democrats, they would need to hold all but four members of their conference. If this maneuver is being deployed to slip Gaetz past the Senate, will the seemingly large number of House Republicans who hate his guts go along with this?
Simpson’s outburst shows that there are some early signs the answer to that is “no.”
Rep. Patrick McHenry (R-N.C.), right, watches as Rep. Richard Hudson (R-N.C.), left, pulls Rep. Mike Rogers (R-Ala.), back as Rogers yells at Rep. Matt Gaetz (R-Fla.), and others during the 14th round of voting for speaker as the House meets for the fourth day to try and elect a speaker and convene the 118th Congress on Jan. 6, 2023. The Washington Post via Getty Images
Second, going around Senate Republicans would likely anger them. Does Trump want to begin his presidency by humiliating Senate Republicans? Knowing his history of enjoying humiliating supplicants and the fact that he sent a mob to attack Congress, maybe he does.
Third, the scheme would immediately wind up in the courts. As has happened throughout Trump’s political reign, the courts would need to address a constitutional provision that has been effectively silent for over 200 years. The only word on this is from Breyer’s opinion in NLRB v. Canning. But the Supreme Court’s newer conservative members may not agree with that opinion.
In that case, Justice Antonin Scalia wrote a concurrence joined by Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas that agreed with the conclusion of the majority, but argued that the president’s recess appointment power is far more limited than the court’s current interpretation. The conservative justices could use such a case to limit the recess appointment to power to only apply when a vacancy opens up during a recess. Now, this may not hamstring Trump’s potential adjournment plans, as it would depend on the timing of the adjournment and the vacancies, but it shows that the court majority may not be willing to simply accept this plot. (Of course, Roberts’ decision in Trump v. U.S. about presidential immunity shows the court is willing to bend to Trump’s will.)
There are a lot of legal issues that are simply unknown for this plot. What is a disagreement over adjournment? If the Senate simply ignores the House’s resolution to adjourn, does that count as a disagreement? How long must the Senate fail to respond to the House’s adjournment resolution for there to be a disagreement? These questions have never been litigated and it could take a while to sort out.
In the interim, Trump’s recess picks would enjoy the same powers as Cabinet officers who were confirmed by the Senate. According to a 2015 Congressional Research Service report, “A confirmed appointee and a recess appointee have the same legal authority and receive the same rate of pay.”
Democrats, meanwhile, are already highlighting the GOP’s cravenness if they choose to bend the knee.
“The ‘Crawl Test’: Autocrats like to make minions crawl,” Sen. Sheldon Whitehouse (D-R.I.) said in a social media post on Wednesday. “Gaetz and [Tulsi] Gabbard [for director of national intelligence] nominations will test Republican senators’ willingness to crawl for Trump. Should be interesting.”
