Topline

President-elect Donald Trump has suggested he wants to use “recess appointments” to confirm his Cabinet nominees when he takes office, a process that could allow controversial picks like former Rep. Matt Gaetz, R-Fla., and Robert F. Kennedy Jr. to avoid a contentious Senate confirmation process—but may be hard to implement in practice.

Key Facts

How Would Gop Lawmakers Let Trump Use Recess Appointments?

In order for Trump to make recess appointments, lawmakers in both the House and Senate would have to agree for the Senate to adjourn for more than 10 days, as the Constitution requires both chambers to agree in order to adjourn for more than three days. Congressional leadership could be open to that, with newly elected Senate Majority Leader John Thune, R-S.D., tweeting, “We must act quickly and decisively to get the president’s nominees in place as soon as possible, [and] all options are on the table to make that happen, including recess appointments.” While Republicans will hold a majority that could allow both sides to agree for such an adjournment, Semafor notes Democrats could try to indefinitely delay the resolution, however. Democrats could continually propose amendments to the adjournment resolution, which would keep it from going to a vote. At least 60 votes would be needed to end that process and force a vote in the Senate, which is unlikely to happen unless Republicans were to get rid of the filibuster rule that imposes the 60-vote threshold.

Could Trump Force The Senate To Recess?

Article II, section 3 of the Constitution states that in cases where the House and Senate can’t agree on adjourning, the president can "adjourn them to such Time as he shall think proper.” Trump could try to use that power now to force through recess appointments, after threatening to use it in 2020 when Congress was out of session during the COVID-19 pandemic, but ultimately backing down. It remains to be seen whether he will try to adjourn Congress—and his attempt would be contingent on both chambers disagreeing with each other—and Trump would likely get strong blowback if he tries. Rep. Jamie Raskin, D-Md., said when Trump floated it in 2020 that forcing the adjournment of one chamber of Congress “comes out of a dictator’s handbook” and “would provoke a true constitutional crisis” if Trump were to do it, as quoted by The Washington Post.

Contra

Adjourning the Senate for more than 10 days in order to confirm Trump’s nominees could also be a blow to Republicans’ governing agenda, Semafor notes, as it would significantly limit the amount of time Congress has to help pass Trump’s policy priorities in his first 100 days in office.

Surprising Fact

While they’re in favor of Trump’s recess appointment plan now, Republicans were the ones opposed to the process when Obama was making recess appointments during his presidency. Then-Senate Majority Leader Mitch McConnell, R-Ky., called Obama’s appointments a “power grab,” and led Senate Republicans in intervening in the Supreme Court case over them in order to argue against the practice. The Supreme Court ruled 9-0 against the Obama administration in the 2014 recess appointment case, with conservative-leaning Justice Antonin Scalia issuing a concurrence that called recess appointments an “anachronism” whose “only remaining use is the ignoble one of enabling the President to circumvent the Senate’s role in the appointment process.” Right-leaning Justices Samuel Alito and Clarence Thomas, who still serve on the court and could hear a potential dispute over Trump’s use of the practice, both signed on to Scalia’s concurrence.

Key Background

Trump’s appointees for his second term have already garnered criticism, as the president-elect has prioritized naming loyalists willing to execute his agenda over more experienced officials like the ones who pushed back against his policies during his first term. The president-elect’s selection of Gaetz has particularly gotten pushback, including even among GOP senators, given accusations of sexual misconduct that have followed him for years, which he denies—raising the possibility that the attorney general nominee could struggle to be confirmed even in a Trump-friendly Senate. Kennedy could also draw controversy due to his vaccine skepticism and history of sharing health conspiracy theories. Trump made his pronouncement about Senate leadership backing recess appointments on Sunday, before the next Senate Majority Leader was chosen, and candidates for the position quickly fell in line and backed Trump’s claims.

Further Reading

ForbesTrump’s Cabinet: Here Are His Picks For Key Roles—Matt Gaetz, Tulsi Gabbard, Marco Rubio And More