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    • There is a plan in case Senate Republicans aren’t as flexible as Trump wants
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    There is a plan in case Senate Republicans aren’t as flexible as Trump wants

    Online Niel Posted on

    Philip Bump
    | Washington Post

    As of Wednesday afternoon, the most controversial Cabinet nominee offered by President-elect Donald Trump is former Florida congressman Matt Gaetz. This title may be usurped at the time of publication.

    The appointment of Gaetz to become attorney general arguably reflects Trump’s updated approach to presidential power: prioritizing disruption and punishing his opponents over traditional qualities like experience and independence. As such, it’s not entirely clear that Gaetz (or past holders of the most controversial title) will actually win the approval of the Senate majority and thus the right to serve in that role.

    If that happens, though, there’s a backup plan.

    Let us first note that such a contingency may not be necessary. Gaetz would need 50 votes in the Senate to be confirmed, allowing Vice President-elect JD Vance (once sworn in) to break the tie. The next Senate will have 53 Republicans, meaning three Republicans could break the tie without affecting the outcome. (Cabinet nominees cannot be filibustered under Senate-passed rules.)

    Former House Speaker Kevin McCarthy believes more than three Republicans will go south, telling Bloomberg on Thursday that Gaetz will not be confirmed. But then McCarthy has a long-running feud with Gaetz, one that culminated in Gaetz’s successful effort to oust the California Republican from his leadership role. As a measure of his ability to predict election results, McCarthy said at the time that he would survive the impeachment effort.

    CBS News’ Robert Costa reported Thursday morning that a number of senior Republican senators who dislike Gaetz’s nomination would likely accept his confirmation simply to avoid a public fight. Or maybe Sen. Richard Blumenthal (D-Connecticut) is right when he estimates that at least five Republicans will eventually balk. That appears to be one of the central questions of Trump’s nomination process: the extent to which elected Republicans will adhere to his will. Those who reject Gaetz (or anyone) can expect a hostile reception in the White House and possibly from primary voters.

    This question of loyalty, however, may be irrelevant to the actual determination of who serves as attorney general.

    Presidents have another tool for filling government vacancies: recess appointments. The Constitution provides that “The President shall have power to fill all vacancies which may happen during the vacation of the Senate, by granting Committees which shall expire at the end of the next session.” The very reasonable point was that the president shouldn’t wait for someone to run, say, the Department of Defense just because the Senate wasn’t around to give its “Advice and Consent” to nominations, as the Constitution otherwise requires part. .

    This power has led to jockeying between branches in the past. Democrats held a majority in the Senate during the latter part of George W. Bush’s term as president, implementing a system whereby the Senate adjourned and adjourned every few days so that it remained “in session” even when no one was around. No recess appointments could be made, the theory went, since the Senate was not officially in recess.

    When Barack Obama became president and Republicans won control of the chamber, the GOP used the same tactic. Obama, however, challenged them, appointing several people to the National Labor Relations Board during a recess period.

    In 2014, the Supreme Court struck down those appointments, unanimously ruling that Obama had exceeded his authority and establishing firmer guidelines for when a recess appointment could be made.

    On Wednesday afternoon, Tory lawyer Ed Whelan outlined a scenario that uses those guidelines that he said he heard “through the grapevine.” It focuses on Trump as president proactively adjourning Congress so he can appoint people to government positions during the recess he created.

    The process Whelan describes would involve the House introducing a resolution to adjourn both chambers for 10 days, the length of time mandated in the 2014 National Labor Relations Board decision against Noel Canning. If the Senate agreed, it would recess and Trump could make his appointments. What if he refused? Trump would rely on another part of the Constitution.

    The President, Article II, Section 3 provides, “may, on extraordinary occasions, convene both Houses” – that is, the House and the Senate – “or either of them, and in case of disagreement between them, as to the time of Adjournment, he shall he may adjourn to such time as he thinks fit.” So if the Senate doesn’t agree to adjourn, the theory goes, Trump could simply adjourn them.

    As is the case with a lot of noise coming out of Trumpworld, this was explored when he was first president. In April 2020, staff at the Heritage Foundation (now infamous for putting together Project 2025) outlined how such an effort might work. The authors’ conclusion was that it was unclear whether Trump would have such authority “because this provision has never been invoked.” Any such appointments, they predicted, would spark legal battles similar to the one that led to the 2014 decision.

    It means that, once again, Trump’s expansion of power will ultimately have to be judged by a demonstrably friendly Supreme Court. (In a Wednesday post, Whelan suggested that the court could further constrain the president’s appointing authority if asked to review the process. Perhaps, but imposing new constraints on executive authority hasn’t exactly been the pattern with this instance.)

    It is vital to note that what Heritage had in mind was a disagreement between a House and Senate controlled by different parties. That’s not what Trump will have in January. It will have a Senate that is controlled, at times, by skeptical Republicans and a House controlled by almost uniformly devout Republicans. Rep. Rep. Thomas Massie (R-Kentucky) pointedly told reporters Wednesday that a recess appointment is the easy way to get Trump the attorney general he wants. (This probably wasn’t the “little secret” Trump said he and House Speaker Mike Johnson shared weeks before the election. That claim was made in the context of winning House races.)

    If this all seems like a lot of rule-breaking simply to get certain people into positions of power, you might remember how the first Trump administration approached the question. On several occasions, his administration’s deployment of interim officials has been challenged or rejected by the courts. For Trump, it is consistently the result that matters, not the system from which that result is obtained.

    The cascade of possibilities thus shows. Gaetz endures an undeniably tough set of hearings and is brought before the full Senate for confirmation. He understands. Or maybe he falls short in the vote count and the Senate agrees to adjourn to allow Trump to nominate him anyway. (This saves some wavering Republicans from primary campaign ads targeting them for disloyalty to the president.) Maybe that even becomes the plan from the start, allowing Gaetz to skip the hearings. If the Senate won’t vote to adjourn (also a motion that cannot be filibustered), perhaps the inter-branch impeachment mechanism is implemented.

    Apparently, when written, it wouldn’t go that far. How many Senate Republicans could we expect to demonstrate that level of obstruction for Trump? He likes to force demonstrations of loyalty. But being able to simply do what he wants without a fight? It’s safe to assume he’ll take it.

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