Donald Trump has signalled his willingness to bypass the U.S. Senate if it refuses to confirm the cast of controversial characters he’s picked for his cabinet. Even if his own Republican allies try blocking those nominees, which remains far from certain, he may have several paths around them.
Trump has already raised one possibility — recess appointments, which in essence mean plowing ahead while the Senate is on break.
Trump aide Stephen Miller confirmed to Fox News this week that recess appointments are being considered, adding Trump will “use all lawful, constitutional means” to fulfil his mandate.
But this Plan B comes with caveats and complications, is uncertain to work and could trigger a constitutional conflict.
At a minimum, Republicans would have to agree to a recess. If they don’t, some of Trump’s allies are talking about a Plan C — forcing Congress into a recess, a gambit critics call potentially unconstitutional, depending on how it’s done.
And if all that fails there’s a possible Plan D — a 1998 law that allows temporary appointments, although this too comes with conditions.
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Less controversial candidates would normally have an easier route to confirmation, which requires a majority vote in the Senate, which is projected to be 53 per cent held by the Republicans once the still-lingering election counts are done.
This all portends months of drama ahead over choices that shocked official Washington, including some members of Trump’s own party.
At the epicentre of this storm is former congressman Matt Gaetz. He was picked for attorney general while being investigated in Congress for alleged sex with a minor, payments for sex, illegal drug use and accepting improper gifts.
The bipartisan ethics committee working on that investigation failed to get a consensus Wednesday to release a draft report; however, it did vote to complete the final report, according to Punchbowl News, a congressional newsletter.
There’s also the pick for defence secretary, Pete Hegseth, a veteran and Fox News host who opposes women in combat, dislikes the Geneva Conventions against torture, and once paid to settle a rape claim he calls untrue.
A number of Republicans have also expressed doubts about two ex-Democrats Trump wants to appoint: a critic of U.S. intelligence, Tulsi Gabbard, to lead U.S. intelligence; and a vaccine-, pharma- and food-industry critic, Robert F. Kennedy Jr., to lead the health bureaucracy.
Robert F. Kennedy Jr., seen here at a Trump rally on Aug. 23 in Glendale, Ariz., has been nominated as health secretary. (Ross D. Franklin/The Associated Press)
“My expectation is that most of these nominees get through,” said David Lewis, an expert on presidential appointments at Vanderbilt University.
Lewis says he wouldn’t be surprised if one or two ran into serious trouble, then either withdrew or got stuck in limbo.
The fundamental reality, he says, is that Republican senators face competing incentives. There’s the institutional pressure to preserve the power of the Senate, which has a constitutional duty to scrutinize major presidential picks.
But their own political careers may rest with backing Trump. Fighting him has been a career-ending move for several Republicans.
“They are cross-pressured,” Lewis said.
Splitting the difference
These competing demands are evident in the vacillating public comments from several Republicans who detest Gaetz.
Like Sen. Markwayne Mullin of Oklahoma, who has made clear his disdain for Gaetz on a personal level, but is hedging on whether he’ll vote to confirm him. Maybe, maybe not.
Some are splitting the difference another way: insisting the process must continue, and that there must be a nomination hearing in January, but without guaranteeing they’ll vote to confirm Gaetz.
A number of senators who met with Gaetz this week emerged saying he deserves to at least tell his story in a hearing.
“This process will not be a rubber stamp nor will it be driven by a lynch mob,” said Sen. Lindsey Graham, who urged colleagues to do a thorough vetting, but to keep an open mind.
And then, if his confirmation stalls?
Republicans are playing coy on whether they agree with the Plan B of recess appointments. Some like Sen. Rick Scott of Florida appear to wholeheartedly endorse it.
Cabinet nominees require approval by the U.S. Senate, but Trump could potentially bypass the upper chamber by forcing it into recess. (Samuel Corum/Getty Images)
Others disagree.
Sen. Thom Tillis says recess appointments are fine for low-level officials. They’ve happened hundreds of times over the generations. But they’re inappropriate for senior cabinet roles, he says.
“That should be absolutely off the table,” the North Carolina senator told reporters Wednesday. “These positions are too important and carry too much weight internationally.”
There are restrictions on recess appointments. The Supreme Court has said Congress must be on break for a minimum of 10 days, which rarely happens without a pro forma meeting interrupting the break.
The top Republican in the Senate, John Thune, sounded skeptical in an interview with local media in his home state of South Dakota.
Tulsi Gabbard makes an appearance in Manchester, N.H., on Feb. 8, 2020. The former Democrat and outspoken critic of U.S. intelligence efforts has been nominated as director of national intelligence. (Mary Altaffer/The Associated Press)
Without ruling out the idea, he said going on recess requires an adjournment motion in both chambers, which could be amended and dragged out ad nauseum by Democrats.
That has Trump allies talking about a Plan C: forcing Congress to shut down. The Constitution allows the president to do this when the chambers disagree on adjournment, a remnant of the prorogation power in the British system.
“It’s an awful and anti-constitutional idea,” according to Ed Whelan, a legal analyst who writes for the conservative but Trump-skeptical National Review.
He also called it an abuse of the rules.
But that plan would fall apart if both chambers of Congress oppose a recess, and a few Republicans are balking, the website Axios reported Wednesday.
Then, as a final backup, there’s the 1998 Federal Vacancies Reform Act. A lawyer who tried helping Trump overturn the 2020 election says the president can use that.
Jeff Clark, who served in Trump’s Justice Department, described this option in the podcast hosted by his ally Steve Bannon.
A candidate could be installed on a temporary basis for 300 days, provided they were not formally nominated after Trump takes office on Jan. 20.
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Trump has “tools in his quiver,” said Clark, who has been fighting disbarment for actions he took as Trump’s acting assistant attorney general in 2020.
All these options have pros and cons. But as for the president shutting down the Senate?
“Then the wheels are coming off the bus,” Sarah Binder, an expert on presidential-congressional relations at the Brookings Institution, told a liberal podcast hosted by The New Republic.
“We’re sort of [on] the uncharted path here.”
She said the key point is Republican lawmakers have power here — but only if they choose to use it.
They could, for instance, always re-gavel the Senate back into session, and reset the recess clock at zero days, thwarting Trump’s plan.
It’s a big “if.”
“The No. 1 learning from the first Trump four years: The rules on the parchment can’t defend themselves. Rules can’t protect themselves,” she said. “Lawmakers have to leap into action and make a choice…. Certainly standing up to Trump seems a challenge.”