The Math Does Not Favor Avoiding Senate Scrutiny of Trump's Bizarre Cabinet Picks

Several Republican senators have said they are not inclined to abdicate their "advice and consent" role in presidential appointments.

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

Even in a Republican-controlled Senate, questions about the qualifications of Trump's proposed cabinet members might pose problems during their confirmation hearings. Article II, Section 2, Clause 2 of the Constitution says the president "shall nominate" all "officers of the United States" and "shall appoint" them "by and with the advice and consent of the Senate." With 53 GOP senators and ties decided by the vice president, opposition by just four Republicans would be enough to block a nomination, and several of them already have indicated they do not plan to rubber-stamp Trump's choices. But Trump is pushing an alternative that would avoid the need to obtain the Senate's approval.

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

Sen. John Thune (R–S.D.), who was elected majority leader of the incoming Senate on Wednesday, seems open to this option. "We must act quickly and decisively to get the president's nominees in place as soon as possible, & all options are on the table to make that happen, including recess appointments," he said in an X post on Sunday. "We cannot let [outgoing Senate Majority Leader Chuck] Schumer and Senate Dems block the will of the American people."

Can Gaetz et al. take office without Senate scrutiny? The short answer is yes, although it would hinge on approval by the Senate majority required to call a recess, which looks doubtful.

The Supreme Court has approved the approach that Trump favors by resolving two ambiguities in the Recess Appointments Clause. First, it is not clear from the constitutional text whether the "vacancies" that the president is filling have to happen "during the recess of Senate." Second, it is not clear what counts as "the recess of the Senate."

In the 2014 case NLRB v. Canning, which involved the purported recess appointments of three National Labor Relations Board members by President Barack Obama, the Supreme Court addressed both of those questions. Regarding "the scope of the words 'vacancies that may happen,'" the Court noted that the phrase could "refer only to vacancies that first come into existence during a recess" or also to "vacancies that arise prior to a recess but continue to exist during the recess." All of the justices agreed that the clause "applies to both kinds of vacancy."

Regarding "the scope of the words 'recess of the Senate,'" the Court noted that the phrase could "refer only to an inter-session recess (i.e., a break between formal sessions of Congress)." Alternatively, it could "include an intra-session recess, such as a summer recess in the midst of a session." The Court held that the phrase "applies to both kinds of recess," but with a caveat.

"When the appointments before us took place, the Senate was in the midst of a 3-day recess," Justice Stephen Breyer wrote in the majority opinion. "Three days is too short a time to bring a recess within the scope of the Clause. Thus we conclude that the President lacked the power to make the recess appointments here at issue."

Relying on historical practice, the Court held that "a recess of more than 3 days but less than 10 days is presumptively too short." Although "Congress has taken short breaks for almost 200 years, and there have been many thousands of recess appointments in that time," Breyer wrote, "we have not found a single example of a recess appointment made during an intra-session recess that was shorter than 10 days."

Within those constraints, then, the Senate could forgo its "advice and consent" role in presidential appointments by calling 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, which raises 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 thinks Gaetz is "not a serious candidate" and has emphasized the importance of the Senate's role. "There is a process; it's not discretionary," Murkowski said on Wednesday. "It's in the Constitution. It says, 'This is the role of the Senate.' So I feel pretty strongly as a member of the Senate that we have our job to do just as the president has his authorities. I will not accept that the United States Senate should just be an extension of the White House. We are our own separate but equal institution."

Nor can Trump rely on Sen. Susan Collins (R–Maine), who said she was "shocked" by the Gaetz pick. "If the president proceeds with that nominee," she said, "I think it shows the importance of having the Senate advice and consent process." She added that "I'm sure that there will be an extensive background check by the FBI and public hearings and a lot of questions asked."

Sen. Joni Ernst (R–Iowa) likewise does not sound willing to let Gaetz slip in during a recess, saying, "He's got an uphill climb." Although "we always allow the President to have the benefit of the doubt," Sen. Mike Rounds (R–S.D.) said, "we still have to do our role in terms of due diligence."

Sen. Thom Tillis (R–N.C.) said recess appointments should be used "judiciously," expressing concern about "blanket recess appointments." On Thursday, despite his earlier openness to recess appointments, Thune said he prefers "the regular process to get these nominees through," adding his "intention" is to "get these folks going and get voting."

Sen. John Cornyn (R–Texas) also cast doubt on the viability of the shortcut Trump is demanding. "We have a process around here for considering presidential nominees," Cornyn told reporters on Thursday. "That's a constitutional responsibility of the Senate, and I intend to play my part as a member of the Judiciary Committee in doing that vetting and advice and consent." He added that "I don't think we should be circumventing the Senate's responsibilities" and that "it's premature to be talking about recess appointments."

Former House Speaker Kevin McCarthy (R–Calif.), whose ouster Gaetz spearheaded, seems confident that his nemesis will never take office as attorney general. "Look, Gaetz won't get confirmed," he said on Wednesday. "Everybody knows that." More ominously for Gaetz, Sen. Kevin Cramer (R–N.D.) agreed with McCarthy's prediction, saying, "I think he's pretty right, actually."

Cramer expressed doubts about whether trying to get Gaetz confirmed would be worth the effort. "I have concerns that he can't get across the finish line, and we're going to spend a lot of political capital," he told reporters Thursday. "A lot of people will spend a lot of political capital on something that, even if they got [it] done, you'd have to wonder if it was worth it."

Cramer's remarks suggests that he, like Murkowski, Collins, Ernst, Rounds, Cornyn, and maybe Thune, assumes that Gaetz (and presumably other top-level nominees) will have to go through the usual process. For now, at least, the math does not favor Trump's proposed end run.