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Trump’s Demand to Skirt Senate Confirmations Poses Early Test of a Radical Second Term
The once and future president is pushing Republicans to systematically abdicate the Senate’s constitutional role in vetting his nominees.
Charlie Savage writes about presidential power and legal policy.
President-elect Donald J. Trump’s demand that Senate Republicans surrender their role in vetting his nominees poses an early test of whether his second term will be more radical than his first.
Over the weekend, Mr. Trump insisted on social media that Republicans select a new Senate majority leader willing to call recesses during which he could unilaterally appoint personnel, a process that would allow him to sidestep the confirmation process. His allies immediately applauded the idea, intensifying pressure on G.O.P. lawmakers to acquiesce.
The demand to weaken checks and balances and take for himself some of the legislative branch’s usual power underscored Mr. Trump’s authoritarian impulses. While there is no obvious legal obstacle to Mr. Trump’s request, it would be an extraordinary violation of constitutional norms. There is no historical precedent for a deliberate and wholesale abandonment by the Senate of its function of deciding whether to confirm or reject the president’s choices to bestow with government power.
Ed Whelan, a legal commentator who has supported Mr. Trump’s judicial nominees but been critical of Mr. Trump himself, sounded the alarm on Tuesday in an essay for the conservative National Review. The once and future president appeared to be contemplating “an awful and anti-constitutional idea,” he wrote.
Recess appointees who take office without Senate confirmation wield the full powers of their offices until the end of the next Senate session. Each congressional session typically lasts a year, so anyone who receives a recess appointment from Mr. Trump in early 2025 could remain in office until the end of 2026.
The Constitution normally requires the president to obtain the Senate’s consent to appoint top officials to the executive branch, in part to prevent the White House from installing unfit people to high office.
But in the early days of the country, when travel was by horse, the Senate was regularly out of session for months at a time and could not be readily recalled when a key vacancy arose and the country needed someone to fill it. As a result, the founders also wrote an exception into the Constitution, allowing presidents to temporarily fill vacancies without Senate confirmation when it was in recess.
The recess appointment clause is an anachronism in the modern era, since the Senate meets throughout the year and can easily reconvene when necessary. But even though the clause’s original purpose is obsolete, it remains part of the Constitution.
While some of Mr. Trump’s nominees are expected to be members of Congress who will presumably be easily approved by the Republican-controlled Senate, recess appointments would remove a critical check on Mr. Trump at a time when he has flirted with also giving some powerful roles to more extreme allies who could face trouble getting confirmed.
As Alexander Hamilton wrote in the Federalist Papers, essays in defense of the Constitution, the mere existence of this confirmation process would act as a safeguard against the appointment of “unfit” officials.
“A man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature,” Hamilton wrote.
The Supreme Court has said that Senate recesses of at least 10 days are sufficient to allow a president to sidestep confirmation for appointees. To set Mr. Trump up, the majority leader would have to be willing to bring up a motion to adjourn for at least that amount of time. The Senate would then hold a simple majority vote.
If no adjournment motion passes, the chamber would remain in session. If Republicans hold a narrow 53-47 majority, it would take four Republicans to break away and join Democrats to thwart Mr. Trump’s proposal.
There are several reasons to believe that guardrails and bulwarks that sometimes held Mr. Trump back in his norm-shattering first term will be weaker in his second term.
His initial team in 2017 was often dysfunctional, but those who stayed learned how to wield power more effectively. His own political appointees sometimes reined in his impulses, but this time, his allies are determined not to appoint officials who would see a duty to constrain him. His agenda was sometimes blocked by courts, but his appointments have shifted the judiciary in his direction.
And in Mr. Trump’s first term, Republican lawmakers who had independent standing demonstrated occasional willingness to denounce his rhetoric or check his more disruptive proposals. But over time, the Republican Party has become more accepting of Mr. Trump’s propensity to cross lines. And he wore down, outlasted or drove out his G.OP. critics — suggesting that Republicans in Congress may be even more pliable.
Mr. Trump’s demand that the Senate step aside and let him make mass recess appointments is a bold first move to test the waters.
While previous presidents have occasionally made some recess appointments, none has ever tried to systematically bypass Senate approval to unilaterally fill their administrations. It remains to be seen whether Republican senators, fearful of Mr. Trump’s ability to end their careers by backing a primary challenger, will give up one of the most important powers and prerogatives of their office.
In the 21st century, there has been friction between the two branches over the scope and limits of what presidents can do with the recess appointment power.
Since the mid-2000s, both Republicans and Democrats have systematically used so-called pro forma sessions to block presidents from making recess appointments. When the Senate adjourns for longer breaks, a senator goes into the otherwise empty chamber every three days and bangs the gavel — technically carving up a long recess into a series of short ones.
President Barack Obama tried to challenge that innovative tactic as unconstitutional, but the Supreme Court upheld it in 2014.
Mr. Trump’s demand would be an innovation that cuts in the other direction, setting a precedent that would sharply expand his executive power and weaken the legislative branch.
While he has framed the request in terms of positions in the executive branch, the recess appointment power also applies to judicial vacancies — including on the Supreme Court. But presidents have been hesitant to use that power for the judicial branch for good reason: Such appointments have been understood to only be temporary, with no guarantee of life tenure like Senate-confirmed ones.
On social media, Mr. Trump asserted that allowing him to make recess appointments would avoid what he portrayed as past delays in pushing through nominees, saying, “We need positions filled IMMEDIATELY!”
He did not acknowledge a major shift in 2019, engineered by Senate Republicans and led by Mitch McConnell of Kentucky, then the majority leader, that severely curtailed the ability of opposition lawmakers to delay confirmation votes and chew up large amounts of Senate floor time. It changed the chamber’s rules for most executive branch appointments, reducing from 30 to two hours the amount of time lawmakers can debate before a final vote on a nominee.
Maggie Haberman and Jonathan Swan contributed reporting.
Charlie Savage writes about national security and legal policy. More about Charlie Savage
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