“Are you closing in on me?” Rep. Mike Simpson (R–Idaho) he asked when he was informed that Donald Trump planned to nominate Matt Gaetz—a former congressman from Florida with little legal experience who is mainly known for antagonizing fellow Republicans and vigorously defending the former and future president — as attorney general. Other Trump picks, including Fox News host Pete Hegseth secretary of defense and anti-vaxxer Robert F. Kennedy Jr. ca secretary of health and human serviceselicited a similar response.

Even in a Republican-controlled Senate, questions about the qualifications of Trump’s proposed cabinet members could pose problems during confirmation hearings. Article II, Section 2, Clause 2 of the Constitution says that the president “shall nominate” all “officers of the United States” and “appoint” them “with and with the advice and consent of the Senate.” With 53 GOP senators and ties decided by the vice president, opposition from just four Republicans would be enough to block a nomination, and several of them have already indicated they do not intend to back Trump’s picks. But Trump is promoting an alternative that would avoid the need to get Senate approval.

“Any Republican Senator seeking the coveted position of LEADERSHIP in the United States Senate must agree to Recess Appointments,” Trump he wrote in an X post on Sunday, “without which we will not be able to confirm people in a timely manner.” He was referring to Article II, Section 2, Clause 3, which says: “The President shall have power to fill all vacancies that may occur during the recess of the Senate, by commissions which shall expire at the end of the next session. .”

Sen. John Thune (R–SD), who was chosen the incoming Senate majority leader on Wednesday seems open to that option. “We need to move quickly and decisively to put them in place of the president’s nominees as soon as possible, and all options are on the table to make that happen, including recess appointments,” he said in an X post on Sunday. “We cannot let Schumer and the members of the Senate block the will of the American people.”

Can Gaetz et al. take office without Senate control? The short answer is yes, although it would depend on the approval of a majority of the Senate necessary to call a break, which seems doubtful.

The Supreme Court approved the approach Trump favors the solution two ambiguities in the recess appointments clause. First, it is not clear from the constitutional text whether the “vacancies” that the president fills must take place “during the recess of the Senate.” Second, it’s not clear what counts as a “Senate violation.”

In the case of 2014 NLRB v. Canninginvolving the alleged recess appointments of three members of the National Labor Relations Board by President Barack Obama, the Supreme Court address both questions. As to the “scope of the words “vacancies which may occur,” the Court noted that the phrase could “refer only to vacancies occurring for the first time during a recess,” or also to “vacancies that occur before a break but continue to exist during the break”. All the judges agreed that the clause “applies to both types of vacancies”.

Regarding the “scope of the words “session of the Senate,” the Court noted that the phrase could “refer only to an intersessional recess (ie, a break between official sessions of Congress).” Alternatively, it could “include an in-session break, such as a mid-session summer break.” The Court held that the phrase “applies to both types of break,” but with a caveat.

“When the appointments before us took place, the Senate was in the middle of a 3-day recess,” Justice Stephen Breyer wrote in the majority opinion. “Three days is too short a time to introduce a break in the scope of the clause. Thus, we conclude that the president did not have the power to make the recess appointments here in question.”

Based on historical practice, the Court held that “a break of more than 3 days but less than 10 days is presumptively too short.” Although “Congress has taken short recesses for nearly 200 years, and there have been many thousands of recess meetings during that time,” Breyer wrote, “I have found no example of recess scheduling made during an in-session recess that was longer than short of 10 days.”

Under those constraints, the Senate could relinquish its “advise and consent” role in presidential appointments, announcing a recess, in which case Trump’s nominees. could serve until the end of the next Senate session in 2026. But recesses require majority approval, raising the question of whether 51 Republican senators are willing to let controversial nominees take office without confirmation.

Trump clearly cannot count on Sen. Lisa Murkowski (R–Alaska), who think Gaetz is “not a serious candidate” and emphasized the importance of the Senate’s role. “There is a process; it’s not discretionary,” Murkowski said Wednesday. “It’s in the Constitution. It says, “This is the role of the Senate.” So as a member of the Senate, I think we have to do our job, as the president has his powers, I will not accept that the United States Senate should be just an extension of the White House but an equal institution.”

Nor can Trump count on Sen. Susan Collins (R-Maine), who said she was “shocked” by Gaetz’s selection. “If the president goes ahead with that candidate,” she said“I think it shows the importance of Senate advice and the consent process.” It added that “I’m sure there will be an extensive background check by the FBI and public hearings and a lot of questions asked.”

Sen. Joni Ernst (R–Iowa) also doesn’t seem willing to let Gaetz slip during a recess, saying“It has an uphill climb.” While “we always give the president the benefit of the doubt,” Sen. Mike Rounds (R–SD) said“we still have to do our part in terms of due diligence.”

Senator Thom Tillis (R–NC) said break appointments should be used “judiciously”, expressing concern about “general break meetings”. On Thursday, despite its earlier opening to meetings during the break, Thune said he prefers “the usual process to get these nominees through,” adding that his “intention” is “to get these people to go and vote.”

Sen. John Cornyn (R-Texas) also cast doubt on the viability of the shortcut Trump is seeking. “We have a process here for considering presidential candidates,” Cornyn said reporters Thursday. “That is a constitutional responsibility of the Senate, and I intend to do my part as a member of the Judiciary Committee in doing that vetting, counseling and consent.” He added that “I don’t think we should sidestep the responsibilities of the Senate” and that “it’s premature to talk about recess appointments.”

Former House Speaker Kevin McCarthy (R-Calif.), whose ouster Gaetz at the head of the spearhe seems confident that his nemesis will never take over as attorney general. “Look, Gaetz is not going to be confirmed,” he said Wednesday. “Everybody knows that.” More ominously for Gaetz, Sen. Kevin Cramer (R-ND) agreed with McCarthy’s prediction, saying“I think he’s right, actually.”

Cramer expressed doubts whether trying to confirm Gaetz would be worth the effort. “I’m concerned that he can’t cross the finish line and we’re going to spend a lot of political capital,” he said. said reporters Thursday. “A lot of people will spend a lot of political capital on something that, even if they’ve done it, you have to wonder if it was worth it.”

Cramer’s remarks suggest that he, like Murkowski, Collins, Ernst, Rounds, Cornyn and perhaps Thune, assumes Gaetz (and likely other top-level nominees) will have to go through the usual process. For now, at least, the math doesn’t favor Trump’s proposed final race.