Senate Republicans are skeptical about fulfilling Donald Trump’s request that the upper chamber allow for recess appointments to sidestep the confirmation process.
Trump, who has made a series of controversial Cabinet nominations this week, called for Republicans to select a majority leader who would allow him to make temporary appointments while the Senate is in recess so Democrats are unable to slow down the confirmation process.
“This is what they did four years ago, and we cannot let it happen again,” Trump wrote Monday on Truth Social. “We need positions filled IMMEDIATELY!”
But Senate Republicans haven’t committed to doing so. Instead, multiple members have voiced concerns about some of the president-elect’s Cabinet picks, including his nomination of Rep. Matt Gaetz as attorney general, ex-Rep. Tulsi Gabbard for director of national intelligence, and Robert F. Kennedy Jr. to lead the Department of Health and Human Services, saying they plan to vet them accordingly.
“Just like all the others, I think we’ll handle them one at a time and do the vetting and do our due diligence and do our duty of advice and consent,” Sen. John Cornyn (R-TX) said, referring to Kennedy’s nomination on Thursday afternoon.
“I don’t think we should be circumventing the Senate’s responsibilities, but I think it’s premature to be talking about recess appointments right now,” Cornyn said earlier in the day.
Still, the Texas senator, who unsuccessfully ran for majority leader earlier in the week, appears to not have completely ruled out recess appointments, writing in a post on social media on Sunday that he would not allow Democrats to bog down the process.
“If they do, we will stay in session, including weekends, until they relent. Additionally, the Constitution expressly confers the power on the President to make recess appointments,” Cornyn posted.
Sen. John Thune (R-SD), who was elected Senate Republican leader on Wednesday, suggested he’d prefer the Senate to maintain its traditional role in confirming appointments.
“What we’re going to do is make sure that we are processing his nominees in a way that gets them into those positions so they can implement his agenda. How that happens remains to be seen,” Thune said Wednesday. “Obviously, we want to make sure our committees have confirmation hearings like they typically do.”
Sen. Susan Collins (R-ME), a key member of the Intelligence Committee said the Senate’s consent is critically important when it comes to Gabbard’s nomination.
“She’s a nominee that illustrates the importance of a full background check, a public hearing, and the constitutional role of the Senate on advice and consent, rather than doing some sort of recess appointment,” Collins said, speaking to reporters on Thursday.
Meanwhile, Sen. James Lankford (R-OK) said a recess appointment is only necessary in “a moment where it shows the Senate is not doing their work.”
“Quite frankly, the Senate should be here and do its work. A recess has to be more than two weeks already and that would say that Congress is not here already doing its task, so we need to be able to be here and do its task,” Lankford said.
Some Republicans have suggested the only reason to deploy a recess appointment scenario would be if Democrats decide to obstruct.
“I think everybody would like to utilize regular order to the point where Democrats are trying to obstruct things,” said Sen. Ron Johnson (R-WI). “I mean, we know President Trump has to get his appointments. He has to complete his administration in order to govern effectively.”
“The clock is running, and we know Democrats would probably drag their feet. So if they do, I think that’s definitely on the table,” Johnson added.
For years, Republicans and Democrats have utilized pro forma sessions to block presidents from making recess appointments. When the Senate adjourns for longer recesses or district work periods, a senator goes into the chamber every couple of days to preside over an empty chamber.
Recess appointments require that the Senate be adjourned for at least 10 days. But the House and Senate require one another’s approval to adjourn for more than three days. That means the House could vote to adjourn for more than three days, the Senate declines to agree, and Trump could — theoretically — undertake the precedent-setting move of using his constitutional authority to resolve the conflict by forcing the Senate to also adjourn.
“Trump couldn’t adjourn himself, but there’s an adjournment procedure in the Constitution when the Houses don’t agree — that certainly could be done,” said Sen. Josh Hawley (R-MO), speaking to reporters on Thursday. “When the Houses are not in agreement, the president has the ability to adjourn for 10 days.”
Hawley admitted there are obstacles, pointing to a 2014 decision from the Supreme Court that put the 10-day recess rule into effect for recess appointments after former President Barack Obama attempted to recess-appoint four members of the National Labor Relations Board.
“There are constitutional boundaries in terms of the process he has to use — but in terms of the basic question of is it constitutional to recess appoint people? Presidents have done it forever,” Hawley added, emphasizing it is not preferable for the Senate to operate this way.
However, there are questions of whether a majority of House Republicans would even vote in support of a resolution to adjourn the chamber, specifically with the goal of sliding Gaetz’s nomination past the Senate.
“A large number of House Republicans despise Gaetz and don’t want to see him as the Attorney General, so if it all comes to this, I think there’s a major question of how many of them would vote to adjourn, assuming all Democrats vote no,” said an aide to a Senate Republican who asked to remain anonymous.
Senate Republicans are still attempting to navigate the circumstances in which a recess appointment would be able to move forward.
“There understandably can be questions about whether to what extent and what circumstances we recess under, what circumstances such a recess can trigger the recess appointments power and under what circumstances that might occur,” said Sen. Mike Lee (R-UT). “I don’t think there’s any definitive statement, either from the White House or from Senate Republicans as a whole, delineating that, but I think those are the questions that will come up around it.”
Senate Democrats are issuing a strong warning to Republicans in both chambers should they decide to allow Trump to skirt the Senate confirmation process.
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“Republicans need to remember that if they do that it becomes the standard practice and I don’t think we should, these are the same Republicans who refused to lift the filibuster, for example, to pass key pieces of legislation like the John Lewis voting rights act,” said Sen. Tammy Duckworth (D-IL) in an interview on CNN.
“What I say to my Republican colleagues is show some backbone, be a senator, and let’s vet these candidates for their experience and whether or not they are suitable for the position and whether or not they have been compromised, and let’s truly put people into these positions who are going to do good for the nation,” she added.