In just over two months, Donald Trump will take the oath of office and become America's 47th president. He will seek to hit the ground running with his administration and agenda, partnering with slight Republican majorities in both houses of Congress. One early flashpoint may be some brewing confirmation battles over a handful of major executive appointments. Trump and his allies are vowing to stand behind each and every one of the president-elect's picks, and as I mentioned on Fox recently, presidents deserve broad deference in selecting their personnel. Trump's political comeback represents a modern era 'narrow landslide' in the electoral college, as Kellyanne Conway calls it, plus the first Republican popular vote win at the presidential level in two decades. He has a mandate, and voters have awarded the GOP a governing 'trifecta' -- barely -- for at least two years. Time is of the essence. Such governing opportunities rarely last very long, and the party in power typically gets one or two significant bites at the legislative apple before electoral politics and other factors intervene.
But as I also noted in the segment, Trump isn't the only person in Washington who was independently elected. Members of Congress were, as well, including all 100 Senators, who have an important constitutional role in evaluating executive nominations:
On Trump’s mandate & prerogative — and Senators’ constitutional duty to advise and consent on nominations. Plus a reminder that thanks to one of their own previous power grabs, Senate Democrats are powerless here: pic.twitter.com/ve2X1zejg2
— Guy Benson (@guypbenson) November 15, 2024
Trump will certainly enjoy a very high batting average on getting his people through, thanks in no small measure to Democrats' Obama-era power grab that eliminated the filibuster over such nominations. With an incoming 53-47 GOP majority, Democrats will be effectively powerless to stop any Trump appointee. Only those who also attract opposition from at least four Republican Senators will be in trouble. While the vast majority will sail through, one or more of Trump's selections will face serious opposition. The president-elect's Attorney General nominee, for instance, may already have a large number of Republican opponents lined up in the upper chamber, according to the Wall Street Journal, which would render his confirmation impossible. If that's the case, Team Trump would need to carefully consider whether a protracted, ugly, public fight within the Republican Party -- which would consume a great deal of precious time, political capital and attention -- would be worth having over one or two nominees, especially if those individuals end up getting defeated and replaced in the end.
A wildcard in this calculation, however, is a 'recess appointments' scheme Trump has telegraphed, in which the president would temporarily adjourn Congress and exploit that deliberately-choreographed "recess" moment to appoint cabinet members or others who might otherwise fail under the normal, constitutional framework of Senate confirmation. Legal expert and longtime federal prosecutor Andy McCarthy -- whom Trump has cited repeatedly throughout public debates over the former and future president's various legal travails -- describes the idea, which he views as unconstitutional. He does so in the context of the system the founders designed, as well as a more limited attempt by former President Obama to abuse his authority in this realm:
Our Ed Whelan has ably explained the recess-appointment scheme. Trump would exploit a provision of the Constitution never before used for this purpose, Article II, Section 3, which states in pertinent part: "[The President] may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper." [Emphasis added.] To be clear, when Trump assumes office on January 20, 2025, the Senate and House will already be in session — the first session of the 119th Congress of the United States begins 17 days earlier, on January 3. The challenges facing the nation are great, the amount of work to be done (including confirmations of executive officials) is immense, and there is thus no reason for either congressional chamber not to be in session, much less to be disagreeing about whether they should be in session. Nevertheless, the reported supposition is that Trump will attempt to manufacture a disagreement as a pretext for creating an adjournment of at least ten days, which his administration would regard as a recess (the italicized terms are important for reasons we’ll come to).
This, the theory goes, would give him the window he needs to install cabinet appointees (and perhaps other high officials) who would have difficulty getting through Senate confirmation. Trump could not pull this off on his own. He’d need help from Republicans in Congress: a joint House-Senate resolution calling for an adjournment of at least ten days. The Senate is a non-starter because, though it has no shortage of Trump factotums, the new president would be unable to unite all 53 Republicans in a scheme to eviscerate their own advice-and-consent power. (Democratic senators would not be able to filibuster such a procedural motion, but there would be no need for that.) Ergo, the thinking is that Trump would need to coopt House Speaker Mike Johnson (R., La.): It would be up to the speaker to unite Republicans, almost unanimously, behind a proposed joint resolution; the Senate would refuse to go along, whereupon Trump would proclaim a “disagreement” between the two chambers. This would purportedly trigger his power to adjourn them for ten days, during which he’d make the recess appointments.
McCarthy does a thorough job running through multiple legal arguments agaisnt this maneuver, while also making an analytical case why he thinks the plan would fail to win enough GOP support to be 'successfully' attempted. Any such success, he argues, would likely be rather short-lived, as SCOTUS would probably intervene to invalidate these appointments (click through for his full explanation why, including what he sees as a critical distinction between a Congressional 'adjournment' and a proper 'recess'). His conclusion:
That is, if the faux recess-appointment issue makes it back to the courts, a lopsided vindication of Scalia’s [Obama-era] concurrence is the likely outcome. And rest assured, the issue would end up back in the courts quickly. Canning made it there, and rocketed up to the Supreme Court, because the unconstitutionally appointed officials began exercising the powers of the offices they invalidly held, and the negatively affected people and entities quickly filed lawsuits...I believe that the guardrails are going to work, that congressional Republicans will not disgrace themselves by undermining a Senate power that is a vital congressional check on despotic executive tendencies — a check in the service of liberty. I hope Speaker Johnson won’t give the time of day to a manufactured recess scheme that is patently designed to erase Senate constitutional authority. But most of all I hope President-elect Trump comes to the conclusion that if a person, no matter how loyal, cannot reasonably hope to be confirmed by a Senate in firm Republican control, then that person should not be a nominee.
I'd like to add one more important, political point here: When one side overreaches and blows up some norm or precedent, in pursuit of their own expedient political interests, that new precedent is invariably and inevitably turned against them down the road. Perhaps the clearest and most potent recent example of this was when Democrats crushed the judicial filibuster during Barack Obama's presidency, prompting a stern warning from Mitch McConnell that they'd live to regret their decision, perhaps sooner than they'd realized. Fast forward to the first presidency, which featured a blizzard of simple-majority judicial confirmations, including three new SCOTUS justices, and a fresh 6-3 right-leaning majority. Senate Democrats' insistence on creating new rules for themselves blew up in their faces, within a handful of years, in a lasting and painful way.
Let's say that Trump and Congressional Republicans decide that it's worth attempting this 'recess appointment' gambit, and it somehow survives judicial scrutiny. That would effectively end constituionally-mandated Senate confirmation powers as we've known them. I'd like fellow constitutional conservatives to think, honestly, about how you'd be reacting if the electorate had been in a slightly different mood, and Kamala Harris had won the presidency, alongside small Congressional Democratic majorities. Take Donald Trump out of the equation entirely, for a moment. Similarly, banish his Attorney General and HHS selections from consideration, for now. Imagine President-elect Harris had just announced Treasury Secretary AOC, or Attorney General Adam Schiff, or DHS Chief Rashida Tlaib, or all of the above (set aside whether you think these comparisons are or are not equivalent to the figures Trump has advanced). Then imagine Harris toying with the idea of working with Chuck Schumer and Hakeem Jeffries to create a phony recess in order to bypass Senate confirmation for some of these nominations, knowing full well that a few of them might be on the rocks, even among some Democrats.
How would you react? Would you shrug it off and take it in stride? 'Elections have consequences, and Democrats are inventing new ways to circumvent the constitution's checks and balances -- oh well.' Or would you be loudly, urgently decrying an attempted egregious abuse of power, demanding that members of Harris' party step up to defeat it, and for the courts to immediately halt it? If we're being candid and intellectually honest with ourselves, I suspect nearly all of us know the answer. And if we'd be utterly horrified by the opposing party installing its most controversial and polarizing people into positions of immense power through this sort of dubious scheme, that should inform our thinking over the next several months. Is [fill in the blank Trump nominee] really worth setting this new precedent? As you contemplate your response, try to cool current passions and instead conjure to mind your worst nightmare, from a Democratic personnel perspective, and consider if that person being installed through the exact same method in the future would be worth it. Sweeping aside, for the sake of argument, all the serious constitutional concerns at play, while pushing Trump and his nominees out of mind, I certainly know my conclusion.
Join the conversation as a VIP Member