President-elect Donald Trump is charting a course toward a major confrontation with the Senate over confirming his Cabinet nominees, which could provoke an unprecedented power struggle between the executive and legislative branches of government.
His pressure campaign is already underway, with Trump posting on social media ahead of the Senate Republican leader election earlier this week that a majority leader "must agree" to allow for recess appointments if his nominees otherwise stall out during the confirmation process. The three candidates in the leader race quickly agreed it would be an option, and the winner, Sen. John Thune, R-S.D., reiterated publicly on Thursday that "all options are on the table."
"Hopefully it doesn't get to that, but we'll find out fairly quickly whether the Democrats want to play ball or not," Thune told Fox News on Thursday. Thune and other Republicans have worked to shift the focus to the minority party despite having a 53-vote GOP-controlled Senate, which can approve Trump's nominees without any help from Democrats.
But the true confrontation may not be between opposing parties. Instead, Trump may have to contend with GOP resistance to his more controversial nominees, including former Florida GOP Rep. Matt Gaetz for attorney general and former Democratic Rep. Tulsi Gabbard of Hawaii for director of national intelligence. Those nominees pose an early and critical test for Senate Republicans as they navigate fealty to a party leader who they say is responsible for the GOP getting unified government, and holding onto one of their most important job functions.
"It does come off as a shot across the bow [from Trump]," said Philip Wallach, a senior fellow at the center-right American Enterprise Institute. "You're forcing legislators to ask themselves, do we want to formally let ourselves be swept out of the way, and what kind of precedent does that set? The idea that the reward for us winning the Senate is that we need to put our heads between our legs and skulk off and just watch you put on a show — I don't think senators are likely to go for that."
If Trump doesn't back down, and Thune doesn't have the votes to confirm any combination of nominees, then the fight could begin.
Let's back up. How do confirmations typically work?
Presidential nominations are usually referred to relevant committees. For instance, the attorney general is referred to the Senate Judiciary Committee. While there are times when a privileged nomination isn't referred unless requested by a senator, most nominees are vetted this way.
Committees assemble information about nominees before, or sometimes instead of, a hearing. This is where senators look at the qualifications, statements and experience of the nominees. For most Cabinet-level nominees, but especially high-profile nominations like secretaries of state and defense, a public confirmation hearing is common and expected by the Senate.
The committee then reports the nomination to the full Senate with a few options: favorably, unfavorably, without a recommendation, or it can take no action.
A majority of the full Senate is needed to approve a nomination. Nominees are no longer subject to a 60-vote filibuster threat, so Democrats can't block any nominees on their own, but they can use procedural rules to slow down the process — and likely will again.
While Cabinet-level positions get a lot of media attention, there are thousands of executive nominations made each Congress. There's simply not enough time for the Senate to approve all of them individually so the Senate can approve "en bloc" — essentially a bulk approval.
It's worth noting that it is rare for the Senate to vote down a Cabinet pick. Nominees at risk of failing to make it through the Senate process can withdraw before they reach the point of public failure.
OK, but what about these recess appointments?
The Constitution empowers the president to make recess appointments — a limited-term appointment to fill a vacancy while the chamber is in recess that essentially circumvents the confirmation process.
"For most of the country's history, Congress really was not in session most of the time," said Wallach. "In this age of modern transportation, where for most of these legislators, this is their full-time job, Congress is pretty much always around. And so the basic need for recess appointments just looks much less important to the constitutional system than it would have to the founders who would have thought, 'yeah as a logistical matter, it's really important we be able to put people in place if Congress is going to not be here for the next four months.'"
Recess appointments only last until the end of the Senate's next session.
Sarah Binder, a political science professor at George Washington University, says that kind of limitation isn't necessarily a drawback for the Trump administration.
"Two years in politics can be a long time, especially for a Trump appointee given the turnover that he's had before," she said.
If a president uses recess appointments to get nominees through, those nominees face the potential of no salary if the Senate then formally votes against that nomination.
Past presidents have used the recess appointment mechanism, usually for below Cabinet-level positions.
In 2014, the U.S. Supreme Court ruled in response to then-President Barack Obama using recess appointments to fill spots on the National Labor Relations Board that it takes 10 or more days to constitute an actual recess in the Senate.
Since that ruling, the Senate has done away with long recesses. To make sure a president can't install someone without their input, the Senate has what's called "pro forma" sessions. Little if any business is conducted while most of the Senate is away, and one senator comes to the chamber every few days to technically keep the body in session.
OK, but if Republicans wanted to help Trump by taking a recess, could they?
Technically, yes. Senate Democrats could make the process difficult through procedural maneuvers. But conceivably, the GOP-controlled Senate could find a way to adjourn for the necessary 10 or more days. That would give Trump the opportunity to work his will.
But the larger question is — would Senate Republicans really want to abdicate one of their main job functions? Senators take the advice and consent of presidential nominations seriously and don't want to be bypassed entirely by the president.
"Do senators really have 50 votes to say, 'We're not going to exercise advice and consent. You can do whatever you want. Our loyalty to you is so much more important to the rights we have as senators,'" Binder said.
Texas GOP Sen. John Cornyn, a former top party leader who ran for Senate majority leader, recently told reporters recess appointments are a kind of "fail safe" if Democrats were to block nominees.
"[Trump] has a right to get his team in place without unnecessary delays," he said. "That's where I see the recess appointments."
Thune told reporters he expects "a level of cooperation from the Democrats to work with us to get these folks installed."
Republicans could adjust the calendar — staying longer or working on the weekends — to apply pressure and try to get Democrats to cooperate. But that's a very different story than the Senate deciding to step aside from one of its biggest duties.
Is there another way for recess appointments to go through?
Buckle up.
Short answer — yes — and it has to do with Congress adjourning.
Both chambers have to consent to adjourn for longer than three days. If one chamber agrees to adjourn and the other doesn't, then the House and Senate are considered in a state of disagreement.
Cue the Constitution, which says: "in Case of Disagreement between [the House and Senate], with Respect to the Time of Adjournment, [the president] may adjourn them to such Time as he think proper."
So a president could adjourn Congress if there is disagreement between the two chambers and use that as a way to ram his nominees through. It's something Trump previously threatened to do during his first term.
"It's not something that's ever happened in American history. It kind of smacks of this royal model that America was trying to shake off 250 years ago, right?" said Wallach. "The idea that a king can prorogue parliament. If you had the members of one chamber screaming bloody murder while the president was trying to pull this off it would be an exceptional constitutional crisis."
And like any uncharted territory, this comes with a lot of questions.
For example, congressional parliamentary experts disagree on what constitutes a formal disagreement between chambers. Some told NPR the Senate would need to send a formal resolution back to the House — others said the mere fact that whatever House adjournment resolution gets sent to the Senate doesn't pass the Senate is indication that there's disagreement.
"I think that this debate has gotten out of hand," said James Wallner, senior fellow at R Street, a think tank focused on public policy through limited government. "This just isn't going to happen."
He said in order for a state of disagreement to exist, the House would have to pass an adjournment resolution, send it to the Senate, the Senate amends the bill and sends it back to the House and the House would disagree with the changes.
"Simply passing the bill and sending it to the Senate and the Senate doing nothing doesn't mean the Senate disagrees with your bill, it means the Senate's ignoring you," Wallner said. "The House can't force the Senate into a state of disagreement. Only the Senate can do that by acting on whatever the House sends them."
But procedure and constitutionality is one thing — entirely separate from a messaging fight that Trump could wage from the White House. And the fact that this is being debated in Washington — with all the murky procedural waters — underscores just how much Trump seems primed for this fight.
While there's parliamentary quibbling about how, exactly, Trump would attempt to adjourn the Senate on his own, there's broad agreement that if he tried to do it, it would likely require Supreme Court intervention to ultimately resolve it. There's also questions about at what point the courts can intervene and with what injured party.
It's also possible that Trump's demand for recess appointments is part of a strategy to get Republicans who have qualms with some of his nominees to get in line.
"With Trump, there's always the question of, is he raising the stakes as a way of shifting the negotiation onto more favorable grounds, without really expecting to have to go through with everything he's saying," Wallach said.
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