With President-elect Donald Trump’s latest slate of extreme or controversial nominees — Rep. Matt Gaetz for attorney general, former Rep. Tulsi Gabbard for director of national intelligence, Pete Hegseth for defense secretary, Robert F. Kennedy Jr. for health and human services secretary — even a Republican There are questions about whether the -controlled Senate will actually confirm them.
But what if that is asking the wrong question? What if Trump has no intention of seeking Senate approval?
Trump has done a lot throughout the transition reference In his intention to use “rest appointments” to get his appointees in place more quickly. It refers to an enduring presidential power to fill jobs that normally require Senate confirmation when Congress is in recess. That power is enshrined in the Constitution in an era when it would take months of travel to reconstitute a fragmented Congress; More recently, presidents have used it to get closer to Senate opponents for specific picks.
Yet Trump’s references to vacation appointments were vague, and it’s unclear why he placed so much emphasis on them. The new Congress won’t need a break for some time. The Senate must quickly consider its top nominees. The new Republican majority will likely respect most of its choices, and the Democratic minority won’t actually have the power to block any of them. So why would a holiday appointment be needed so soon?
Well-connected conservative legal activist Ed Whelan got a possible clue as to what might be on Trump’s mind when he heard a rumor.
“Hopefully it’s wrong,” Whelan X wrote on Wednesday“But I’m hearing through the grapevine about this bonkers plan: Trump will suspend both houses of Congress under Article II, Section 3, and then appoint his cabinet to retirement.”
It might sound technical, but it would amount to a huge power grab: Trump would force the Senate to recess. This means that, for many key positions in the federal government, Trump can simply ignore the Senate, thumbing his nose at anyone he wants to impose, no matter how corrupt, extreme or controversial.
Moreover, it means Trump will choose to undermine one of the biggest safeguards limiting presidential authority: the Senate’s confirmation powers. If Trump tries and gets away with it, Senate confirmation powers will effectively cease to exist.
Currently, it remains in the rumor stage, and if it is indeed being considered by Trump, it is unclear whether he will go through with it. But it makes a lot of sense. It may reflect the influence of Elon Musk and Silicon Valley in Trump’s camp — a risky, ideology-scattering effort to disrupt politics, governance, and the workings of presidential power. (There is indeed musk Tweeted About holiday appointments.)
That means starting Trump’s term with a high-stakes showdown and certain litigation — with no one sure how things will play out.
Why this holiday appointment plot will be different than past holiday appointment debates
Holiday hiring has been the subject of political and legal controversy in the past.
In 2012, President Barack Obama was frustrated by the Republican Senate minority’s continued filibuster of many of his key nominations. (At the time, 60 votes were needed to get nominees past a filibuster; rule changes have lowered that threshold to a simple majority.) He wanted to use recess appointments to fill some positions, but Republicans were blocking the Senate from recessing at all. Although everyone left the city, they held on “Pro Forma” Session Where nothing actually happened.
So Obama decided Make holiday appointments only anywayFilling three National Labor Relations Board seats and the directorship of the newly formed Consumer Financial Protection Bureau. The administration argued that the pro forma sessions were bogus and that Congress was actually in recess; So, Obama can make holiday appointments. But the Supreme Court Unanimously rejected It was up to Congress to determine whether it was a recess, he argued.
Trump’s plan would be far more brazen.
The Constitution states that while Congress is in session, both chambers of Congress must consent if they wish to adjourn Congress for more than three days. But it also says that “in case of disagreement between them, respecting the time of adjournment,” the President “may adjourn them for such time as he may think fit.”
In Layperson’s terms, it appears that if the House and Senate disagree about when to adjourn, the president can force them to do so. have this power Never been used by the President.
But according to Whelan’s formula In the conservative legislative movement, the plan is rallying Trump’s team. First, Trump will get a motion to adjourn Congress in the House of Representatives under Speaker Mike Johnson. Then, if the Senate refuses to do so, President Trump will resign, saying that he will use his power to force the Senate to prorogue as the two chambers disagree. Then he would make vacation appointments to his heart’s content.
Such appointments will inevitably be challenged in court, and the Supreme Court will ultimately determine whether they are valid.
Whelan has gone public because he is horrified by the idea. “It is a fundamental common feature of our system of separation of powers that the President submits his nominations for major offices to the Senate for approval,” he said. Wrote in National Review. “This feature plays an important role in ensuring the quality of the president’s choices.”
If Trump pulls it off, it would be a complete humiliation for incoming Senate Majority Leader John Thune and Republican senators — essentially taking a wrecking ball to Senate power.
The scheme will also require the cooperation of Speaker Johnson and his House majority, as Whelan points out. But it’s unclear whether Republicans have the inclination or backbone to stand up to Trump’s unprecedented power grab in the chamber — or in the courts. And the rumors of Trump’s abuse of power are sickening that must lie ahead.
