Recess nominations: Can Trump bypass Senate to nominate Gaetz, other aides? | Political Affairs

Throughout his business, media and political career, Donald Trump has shown a willingness to break the norm.

But a recent proposal by the president-elect of the United States to end the established procedures used to appoint cabinet officials for his incoming administration poses a serious legal risk to the country, experts say.

Just days after winning the election this month, Trump on November 10 invoked a clause under the US Constitution that would have allowed him to appoint Cabinet members without Senate confirmation.

“Any Republican Senator seeking a LEADERSHIP position in the United States Senate must accept the Recess Appointment (in the Senate!), otherwise we will not be able to get people confirmed on time,” wrote Trump on social media, encouraging. All three contenders for the position of leadership immediately said that they will comply.

The proposal to use so-called “recess appointments” has caused concern as Trump continues to present a list of nominees for key positions in his administration, including firefighter Matt Gaetz as head of the US Department of Justice.

Passing the Senate would weaken the system of checks and balances that gives Congress oversight of the executive branch, analysts told Al Jazeera, while giving Trump more power at a time when Republicans hold the “trifecta” of control of the White House and the Senate. and the House of Representatives.

“Cabinet selection is the primary way the president exercises power,” said David Froomkin, an assistant professor at the University of Houston Law Center who specializes in administrative law.

“Eliminating the most important check on that power would give the president enormous power.”

Any Republican Senator seeking a LEADERSHIP position in the United States Senate must accept a Temporary Appointment (Senate!), otherwise we will not be able to get people confirmed in time. Sometimes votes can take two years, or more. This…

— Donald J. Trump (@realDonaldTrump) November 10, 2024

A relic of the past

But what exactly is a break appointment?

The process dates back to the country’s early days, when the US Congress would be in recess for months at a time, often during the summer.

When the lawmakers are gone and a vacancy appears, the US Constitution allowed the president to appoint someone without confirmation, although only at the end of the next session of Congress, explains Gabe Neville, a senior consultant at the law firm Covington & Burling, which is very focused. through regulatory processes.

“Nowadays, when Congress is sitting longer, there have been changes in the way the process works and is used,” Neville said.

Legislators no longer travel by stagecoach and train, for example, we no longer need the president to fill emergency vacancies because Congress will not meet for months.

But recess appointments have continued, albeit not at senior cabinet level.

Past presidents have used the provision specifically to speed up the confirmation of federal judges — but the authority technically applies to any appointee, including senior cabinet members and Supreme Court justices.

Former US President Bill Clinton took 139 breaks in office, for example, while his successor George W Bush took 171. power during periods when the Senate was in recess for at least 10 days.

Wary of giving the president too much power, Congress has in the past worked to grant it by calling what are known as “pro forma” sessions, where no actual work is being done, simply to prevent the president from exercising authority.

“So a member from Maryland or Virginia who lives nearby will come in and call the House and Senate to come in and quickly adjourn the day. But with the technology of the session that day,” Neville told Al Jazeera.

But in theory, members of Congress could also decide to take a recess precisely to allow the president to appoint a recess — and Neville said there is an opportunity now, with Republicans in control of Congress and Trump in the White House, for the GOP. lawmakers to do that.

“And we’ve never seen that before,” he said.

It sends a message

Still, it’s not clear whether — or if — Trump can invoke a recess appointment, or whether Congress will go into recess to allow him to do so.

The new Congress will begin on January 3, three weeks before the inauguration of the president, and Republican senators plan to start hearing Trump’s cabinet nominees immediately.

If Trump appoints one of his nominees during the congressional recess, that person will serve the remainder of Congress’s two-year term.

But by citing the provision, Trump — who critics accuse of approving — is sending a message to lawmakers, even those from his own party, that he is impatient with their pushback.

“If the Senate goes along with Trump’s request, it will be the first big sound of tearing up the Constitution,” said Michael Waldman, president of the Brennan Center for Justice at New York University School of Law, writing in an op-ed.

Nicholas Xenakis, a former senior adviser to the late Democratic Senator Dianne Feinstein who also works at the law firm Covington & Burling, told Al Jazeera that the president-elect may also be asking for power as a “benefit”.

Like, ‘Hey Senate, don’t make me use this power that I have. Rush to confirm my nominees,” he said.

“[Opposition] parties will usually be very slow to confirm nominees because they don’t agree with the president’s agenda,” said Xenakis, adding that such situations have occurred during the Trump administration and during the administration of Democratic President Joe Biden.

“So this can be used as a way to get back to that,” he said.

Avoid public scrutiny

Still, with Republicans in control of the Senate, that kind of push is unlikely, although some of Trump’s most controversial nominees, such as Gaetz, are expected to face opposition even from the GOP.

Gaetz, a former congressman from Florida who resigned from the US Congress last week after Trump asked him to lead the Justice Department, has faced a series of investigations into alleged misconduct and illegal conduct.

His resignation came days before the release of a House Ethics Committee investigation into allegations of sexual misconduct.

Froomkin at the University of Houston Law Center said Trump may be seeking to withdraw his nominations out of fear that his nominees are too far-fetched to be confirmed, even by the Senate’s Republican majority.

The president-elect may also want to avoid the public scrutiny that comes with the confirmation process, especially for nominees who have “bones in their closet,” Froomkin said.

Or, Froomkin added, Trump may ask for interim appointments just to seek to govern. “Trump said he wants to be a dictator,” he told Al Jazeera. “He might just resent the presence of his power test.”

Meanwhile, top Republicans have so far appeared reluctant to publicly rule out the possibility of a recess appointment altogether.

John Thune, the Republican senator who was named the next majority leader last week, has pledged to maintain an “aggressive agenda” until Trump’s nominees are confirmed and not withdraw the recess nomination from the table.

Republican House Speaker Mike Johnson also did not rule out Congress overruling to allow the president-elect to appoint cabinet members without Senate approval.

“We will evaluate all of that at the appropriate time, and we will make the appropriate decision,” Johnson said in an interview with NBC News on Sunday. “There may be a job for that. We’ll have to see how it plays out.”