The Math Does Not Favor Avoiding Senate Scrutiny of Trump’s Bizarre Cabinet Picks
“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 ‘reces
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