How Trump can use recess appointments to install controversial Cabinet picks — with or without the help of the Senate

Washington — President-elect Donald Trump has selected for some of the top roles in his administration controversial picks who may not win universal support from Republican senators. He can only afford to lose a few Republicans in the confirmation process, but he’s opened the door to the possibility of forgoing the traditional route altogether, utilizing a Constitutional power known as recess appointments to effectively bypass the Senate — and swiftly approve his nominees.

The possible strategy, raised by Trump in a post on social media last week, has generated mixed reviews among senators, who would stand to forfeit their key advice and consent role. And the president-elect made it something of a litmus test for Senate leadership as Republicans won majority control in the November elections.

What is a recess appointment? 

Though the Senate is tasked with an advice and consent role in the confirmation process, the Constitution’s Recess Appointment Clause affords the president the ability to temporarily fill vacancies while the Senate is in recess, and appointees may stay in the role until the end of the following session. 

The recess appointments power “was built for a time when the Senate was not meeting year round,” says Casey Burgat, the director of the Legislative Affairs Program at George Washington University’s Graduate School of Political Management. 

“You were coming from all states, travel was a problem, and horses and carriages, and they would be out of session more often than they were in session,” Burgat says. ” And so to ensure that the government can continue its work, they gave the president appointment power to name, within recess, someone to take the place.”

More recently, recess appointments have been used by presidents including President George W. Bush, Bill Clinton and Barack Obama — Bush and Clinton made over 100 recess appointments — although they were generally used to fill positions below the Cabinet level. In 2014, the Supreme Court weighed in on a challenge to a handful of Obama appointments, giving the Senate more authority to prevent the maneuver and determining that the chamber must be away for 10 days for recess appointments to occur. 

In recent years, the Senate has used pro-forma sessions to gavel in even when the chamber is on recess in part to avoid recess appointments. And paired with the elimination of a 60-vote threshold for nominees in 2013 — making it easier for the majority to make confirmations — recess appointments haven’t been made in about a decade. 

But that could change in Trump’s second term. Under the Constitution, both chambers have to agree to adjourn for three days or more. And at Trump’s urging, House and Senate Republicans, who are set to narrowly control both chambers in the new Congress, may agree to do so. 

Sen. John Thune, a South Dakota Republican who last week was elected to serve as Senate majority leader in the new Congress, said “all options are on the table” to swiftly approve Trump’s nominees after he takes office, including recess appointments. He’s suggested that while the typical confirmation process is preferred, if Senate Democrats obstruct the confirmation proceedings, Republicans may have to resort to other options. 

Still, pushback from just a handful of Republicans who oppose the recess appointment effort —  which would undermine their ability to study nominees, request documents and have a hearing — could block the move to put the chamber in recess. But experts say Trump could move to adjourn Congress anyway.

Could Trump adjourn Congress to make recess appointments?

The Constitution outlines that a president may adjourn the House and Senate in the case of “Disagreement between them, with Respect to the Time of Adjournment.” So if one chamber approves a resolution to adjourn and the other votes it down, Trump could theoretically weigh in and declare Congress in recess. 

But some experts say that what constitutes a disagreement between the chambers could be interpreted differently, due to the unprecedented nature of the approach, questioning whether a simple lack of action from one chamber after the other approves a resolution to adjourn may be viewed as disagreement. 

“It’s not clear at all how this would work,” says Matt Glassman, a senior fellow at the Government Affairs Institute at Georgetown University, noting that the issue is something that almost certainly would result in litigation. 

Glassman said in a scenario where the House tries to force the Senate out of session to make recess appointments, “it’s not clear to me the court is going to like the idea of the president and the House conspiring to end run the Senate on nominations.”

Trump is “threatening to turn the Constitution’s appointment process for Cabinet officers on its head” with the recess appointments strategy, Edward Whelan, a senior fellow at the conservative Ethics and Public Policy Center, warned in an op-ed in the Washington Post. He urged that House Speaker Mike Johnson, who would be a key player in Trump’s ability to unilaterally adjourn Congress, “can and should immediately put an end to this scheme.”

But Johnson on Sunday left the door open to the strategy, saying on Fox News when asked whether he would take steps to put Congress in recess that a president should be able to “choose his team,” and “if this thing bogs down, it would be a great detriment to the country.” But he acknowledged that he’s “very hopeful” the Senate will do its job and move the nominees along.

The move by the president to adjourn Congress to make recess appointments would create a new precedent, experts say, affecting the way presidents see presidential power going forward.

“When they may see a power deferred to them, they’re very reluctant to give it back going forward,” Burgat says. “The minute you cross the red line, all of a sudden, that red line looks like it didn’t matter at all in the first place.”