One of the elected presidents Donald TrumpAfter winning four more years in the White House, the first move was to request “recess appointments”.
Now it’s clear why.
His Fox News Cabinet picks raised eyebrows and alarm bells for Defense Secretary Pete Hegseth and former Congresswoman Tulsi Gabbard for Director of National Intelligence. But the selection of now-former GOP Rep. Matt Gaetz for attorney general caused audible tailwinds from House Republicans gathered behind closed doors and later public consternation from some GOP senators.
ABC News Washington correspondent Jonathan Karl reports that Trump will push ahead, viewing the nominations as a critical test of loyalty for the new Republican leadership on Capitol Hill.
If that loyalty fails, Karl reports, Trump’s team is eyeing a nuclear option for bypassing Congress altogether: having lawmakers suspend or force a suspension, so he can install his picks in the Senate without an “advise and consent” confirmation process. The Constitution also required an essential legislative power.
It would be a maneuver in line with Trump’s push for more unchecked executive power in his second term, something Karl calls part of the “dictator’s Day One” strategy.
“This kind of sadness, I think, would be unprecedented,” said Harry Litman, a former U.S. attorney and deputy assistant attorney who teaches constitutional law.
President-elect Donald Trump sits in the Oval Office of the White House during a meeting with President Joe Biden, Nov. 13, 2024, in Washington.
Evan Vucci/AP
Experts who spoke to ABC News couldn’t recall a time when the Senate and House agreed to recess for a president to appoint controversial figures to powerful government positions.
Newly elected Senate Majority Leader John Thunewho will take control of the chamber in January, said Republicans would “look at all options,” when asked by ABC News Congressional Correspondent Rachel Scott whether he would move forward with recess appointments.
Thune expressed his desire to hold Senate confirmation hearings, which could be messy battles for people like Gaetz. Republican Sen. Kevin Cramer told ABC’s Scott that Gaetz would not be confirmed if the vote were held now.
If a nominee faces seemingly insurmountable headwinds, Trump can ask both chambers to adjourn to make the appointments himself. But what if the House and Senate don’t see eye to eye during recess?
II of the Constitution Section 3 of the article provides for a president to terminate Congress in the event of a “case of disagreement”.
The provision, in part, reads as follows: “On extraordinary occasions… In the case of disagreements… With regard to the Time of Suspension, he may postpone them to such time as he deems appropriate.”
That has never been done, said Josh Chafetz, a professor of constitutional law at Georgetown University.
If Trump were to go that route, he would likely face legal challenges and end up in front of the Supreme Court.
Senator John, newly elected Senate Majority Leader for the upcoming 119th Congress, waits to speak to reporters at the U.S. Capitol on November 13, 2024 in Washington, D.C.
Ting Shen/AFP via Getty Images
In 2014, the Supreme Court weighed in on the issue of recess appointments after then-President Barack Obama used a brief recess from Congress to appoint officials to the National Labor Relations Board.
NLRB v. The Noel Canning decision finally gave the president the power to fill vacancies during breaks of more than 10 days.
But Justice Anton Scalia, in a concurring opinion, argued against the broad guidelines set by the justices.
“The Court’s decision transforms the recess appointment power from a tool carefully designed to meet a narrow and specific need into a weapon to be used by future presidents against future Senates,” Scalia wrote.
His concurrence was joined by the three conservative justices still sitting on the bench: John Roberts, Samuel Alito and Clarence Thomas.
“Any untested strategy Trump envisions will have an uncertain outcome at the Supreme Court,” Litman said.
But Chafetz noted that the current Supreme Court has taken a broad view of presidential authority, as it did earlier this year, in ruling on immunity.
“This Supreme Court is one that is deeply invested in the executive branch,” Chafetz said. “It’s also a Supreme Court that’s generally been very friendly to Trump, so I’d be surprised to see them block recess appointments under those circumstances.”
Robert F. Kennedy Jr. speaks with Matt Gaetz and Ginger Luckey Gaetz before President-elect Donald Trump at the America First Policy Institute Gala at Mar-a-Lago on Nov. 14, 2024 in Palm Beach, Florida. Fla.
Alex Brandon/AP
Recess appointments have been used by past presidents to perform administrative duties, including more than 100 times by Bill Clinton and George W. Bush. Bush and Obama made recess appointments at the “deputy” level, but not for Cabinet positions.
Neither the previous Trump administration nor the Biden administration made a recess appointment.
During his first term, Trump floated the idea as he expressed frustration that Senate Democrats opposed some of his nominees, but never implemented it.
This time, he would try to do so while the Republicans have a triumvirate: control of the White House, the Senate and the House.
“That’s what his party is rebelling against and complaining about,” Litman said, “and if he’s somehow able to avoid that, it’s even more of an accumulation of power on his part.”
Chafetz called it a “dominance play” by Trump.
“He wants to show that he can bring down the Senate, right?” he said “He wants the entire Republican caucus of the Senate to do this thing that is a show of loyalty to him, not just the act of confirming his nominees, but recusing himself, giving up his power and letting him do it unilaterally.”
