Can Trump bypass the Senate to ram through controversial nominees?

As the Senate grapples with whether to confirm some of President-elect Donald Trump’s most controversial Cabinet selections, the question isn’t just whether they’ll have enough votes to be confirmed – but if those votes will happen at all.

Mr. Trump has repeatedly pressured Senate Republicans to let him make recess appointments if his choices can’t get through the chamber, which will have a narrow Republican majority when the new Congress convenes in January.

Some of Mr. Trump’s allies are arguing that an obscure, never-used clause of the U.S. Constitution could empower him to force the Senate to go out of session – without senators’ consent – in order to ram through his most polarizing picks for top offices.

The basis for this claim is a particular interpretation of Article 2, Section 3 of the U.S. Constitution, which says if the Senate and House can’t agree on the time period for adjournment, the president “may adjourn them to such Time as he shall think proper.”

The question is whether Mr. Trump could utilize this language by getting the Republican-controlled House to vote to recess, and then ruling to adjourn Congress if the Senate doesn’t agree. That could let him put his most controversial nominees at the head of powerful agencies – like Tulsi Gabbard for director of national intelligence or Robert F. Kennedy Jr. for secretary of health and human services – without any say from senators.

Matt Gaetz’s decision to withdraw from consideration for attorney general in the face of Senate opposition shows that the confirmation process is a real obstacle – and one that Mr. Trump could grow more frustrated with in the coming months.

House Speaker Mike Johnson has indicated he may be open to recess appointments. In a Sunday interview on Fox News, Speaker Johnson said that he is “sympathetic” to arguments that the move might be necessary if some of Mr. Trump’s nominees face roadblocks to confirmation in the Senate.

“I wish the Senate would simply do its job of advise and consent, and allow the president to put the persons in his Cabinet of his choosing. But if this thing bogs down, it would be a great detriment to the country, to the American people,” Speaker Johnson said. “We’ll evaluate all that at the appropriate time, and we’ll make the appropriate decision.”

Speaker Johnson can’t unilaterally declare the House in recess – it takes a floor vote. And given how narrowly divided the House will be in the next session, defections from just a handful of moderate Republicans could block the effort.

It’s also unclear whether the House could force the issue if the Senate simply ignores the House’s vote to recess. Any attempt at this maneuver is almost certain to be challenged in court.

Still, if it’s attempted, experts say the country would be entering uncharted waters. No president in U.S. history has tried this before. It would be a dramatic change in how government operates, essentially removing a crucial part of the checks-and-balances system created by the Founding Fathers.

“No one really knows what the limits of this clause are, because it’s never been used,” says Matthew Glassman, a senior fellow at the Government Affairs Institute at Georgetown University and former longtime staffer at the Congressional Research Service.

And this potential scheme could be a sledgehammer, not a scalpel. If Mr. Trump gets a congressional recess, he could appoint whomever he wants to whatever roles he wants – potentially moving hundreds of nominees, with no say from Congress.

“I certainly would take it seriously. It is unclear to what extent the Republican leaders of the House and Senate are willing to abdicate their constitutional responsibilities and become a factotum of Trump. If they acquiesce to this, it would be changing our political system from separation of powers to more of a parliament,” says Daniel Schuman, executive director of the American Governance Institute, a nonpartisan government modernization and transparency organization. “I’m really alarmed about this.”

Some conservative legal scholars are sounding alarms as well. Edward Whelan, a senior fellow at the Ethics and Public Policy Center, has written multiple op-eds in recent days warning Republicans against going along with what he described as a “cockamamie scheme” that would undermine a “fundamental feature of the Constitution’s system of checks and balances.”

How Republican senators are responding

Many Senate Republicans say they want to avoid this scenario, but also seem happy to have the threat of recess appointments hanging over the process as a way to pressure fellow lawmakers – both Democrats and Republicans – who are wary of specific Trump nominations. Incoming Senate Majority Leader John Thune told reporters last week that “all options are on the table, including recess appointments,” to circumvent resistance to Trump appointments.

“The Constitution gives the president the ability to adjourn the houses,” Republican Sen. Josh Hawley of Missouri, a Trump ally, told the Monitor this week. He added that it’s “never been done” and the procedure is “a little unclear,” before offering a warning to his Democratic colleagues: “Don’t gum up the confirmation process.”

Senator Hawley said that he hoped that the threat of recess appointments could pressure his colleagues on both sides of the aisle to allow the Senate to move fast on voting on the president’s appointments.

“I hope it’ll convince them, yes, to move these nominations. If you want to vote no, go ahead and vote no. But let’s don’t jam this up such that we’re not able to confirm,” he said.

Other Senate Republicans downplayed the likelihood of recess appointments.

“If you went and talked to a lot of the people that are being put forth for Cabinet-level positions, they don’t want to go down that route. It’s not going to happen that way,” said North Carolina Sen. Thom Tillis.

“The traditional process will work – and we need to do it fast,” South Carolina Sen. Lindsey Graham said when asked about recess appointments.

Outgoing Senate Minority Leader Mitch McConnell reportedly signaled his opposition to recess appointments at a private event last weekend, though at a Tuesday press conference he disputed the “rumors” that he’d made those comments. While he declined to directly say whether he thought Mr. Trump could force the Senate into recess, he indicated he saw the Senate’s advise-and-consent role as important.

“I’m confident that we’ll engage the same kind of vetting process that we have historically done under both parties with these nominees,” he said.

Where the Supreme Court might land

This isn’t the first time recess appointments have generated controversy. Presidents of both parties have taken advantage of congressional recesses to push through picks who were mired in slow confirmation processes or who faced uphill battles. Over time, Senate leaders responded by simply refusing to officially go on recess, instead entering “pro forma” sessions in which no work was being done but the Senate wasn’t technically out on recess.

Things came to a head in 2012, when then-President Barack Obama claimed the Senate actually was in recess and tried to appoint a trio of members to the National Labor Relations Board. The fight went to the U.S. Supreme Court, which ruled unanimously in 2014 that the nominations that Mr. Obama made during that three-day pro forma session were invalid. The court ruled that for a period to be considered an official “recess,” it must be at least 10 days long.

Three conservative justices who decided that case remain on the court today – Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito – and all three joined a concurring opinion from Justice Antonin Scalia that advanced an even narrower view of the president’s recess appointment power. The founders viewed the Senate’s role in the appointment process “as a critical protection against ‘despotism,’” Justice Scalia wrote. He called the recess-appointments language in the Constitution an “anachronism” from the horse-and-buggy era when it could take weeks or months to convene Congress. Even allowing recess appointments during – not just between – congressional terms “will have the effect of aggrandizing the Presidency beyond its constitutional bounds,” he wrote.

It’s unclear whether these Republican-appointed justices’ views will hold firm, or shift with a Republican in the White House.

Since that ruling a decade ago, Congress has refused to go into recess, preventing presidents of either party from making recess appointments.

Other Senate work-arounds

During his first term in office, President Trump took advantage of another relatively obscure law to put several allies into key positions without subjecting them to Senate confirmation.

He used the Vacancy Act, which allows the president to temporarily appoint anyone who had already been confirmed to any position by the Senate for other roles that would normally require Senate approval. It enabled Mr. Trump to fill some top posts – including attorney general, secretary of defense, homeland security secretary, and head of U.S. Immigration and Customs Enforcement – with controversial selections who may not have been able to get through the Senate.

Traditionally, that law had been used to fill roles with placeholder appointees while nominations worked their way through the Senate’s glacial confirmation process – or to let nominees start working on an acting basis while they waited on the Senate. But for some key positions, Mr. Trump opted to just appoint his favored candidates in an “acting” status, permanently.

That was a significant departure from previous administrations. But it pales in comparison with what Mr. Trump and his allies are now considering.

Staff writer Henry Gass reported from Austin, Texas.

Editor’s note: This story was updated Nov. 21, the day of original publication, to reflect news developments.