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Rep. Matt Gaetz (R-FL), recently the subject of a House Ethics Committee investigation into whether he had sex with a high school girl, is Donald Trump’s choice for attorney general.
Under the Constitution, Congress is clearly supposed to be the most powerful branch. It has by far the most explicit powers, it controls its own rules and procedures, and it has oversight powers over the executive branch. In particular, the Senate, under the “advice and consent” clause, gets to vote on presidential cabinet and judicial nominations.
President-elect Trump is taking direct aim at this power. He intends to remove Senate approval of his cabinet nominees and have them installed in office directly through recess appointments, centralizing power in his hands and allowing him to select whomever he wants.
And if his initial round of nominees is any guide, they will be the most unhinged freaks on right-wing television available.
Trump wants Pete Hegseth, a former Guantanamo Bay guard and weekend Fox & Friends host, to be secretary of defense. He’s also an anti-vaccine nut—an interesting choice given how many millions of soldiers have died of disease over the centuries. Trump wants Tulsi Gabbard, another crank with highly suspect ties to Russia, as director of national intelligence. And he wants Matt Gaetz, recently subject of a House Ethics Committee investigation into whether he had sex with a high school girl, as attorney general. Awesome.
Republican senators, who will enjoy a 53-47 majority, are not happy about these picks. “We in Congress have a responsibility under the Constitution and our advise and consent, which will lead to hearings, an FBI background check and an awful lot of questions being asked in this case,” said Sen. Susan Collins (R-ME), in response to the Gaetz news. But unless they are actually willing to stand up to Trump, what they think won’t matter.
Here’s the plan. The Constitution grants the president the power to appoint temporary cabinet members without Senate confirmation when Congress is in recess: “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.” It also says the president can adjourn Congress in case of a dispute between House and Senate as to when they should adjourn: “… in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper.”
Obviously, this second section does not say the president can adjourn Congress whenever he wants—only when the House and Senate can’t agree on when to adjourn. But if it did, you see how Trump could staff his cabinet indefinitely with no Senate input. Simply adjourn Congress, make the recess appointment, then at some point during the next session adjourn it again and re-up the appointment, and so on.
Trump threatened to do just that in 2020, and seemed to threaten it again a few days ago on Truth Social: “Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner.”
Now, the Supreme Court has already ruled on this question back in 2014. At the time, Republicans were preventing President Obama from making recess appointments by holding pro forma sessions with just a couple of senators present every few days. Arguably, this actually was an infringement of the president’s powers—the purpose of the clause is clearly to allow the president to staff the government if the Senate isn’t present to approve things. Holding fake, do-nothing sessions to stop him is breaking with the spirit of the text. The Court thought otherwise, ruling unanimously in favor of a lawsuit from Senate Republicans.
But we all know that precedent, tradition, empirical facts, the obvious meaning of the Constitution, or plain common sense mean almost nothing to this Supreme Court. If Trump were to file a lawsuit seeking to rewrite the adjournment clause, chances are good the Supremes would oblige him. After all, they already erased most of Article II, placing him formally above the law, as a personal favor.
A more likely possibility is that Trump simply bullies Republican senators into submission. The consistent theme of conservative politics over the last decade has been Trump saying or doing something crazy, Republican elites half-heartedly criticizing him, then drawing attacks from Trump and his toadies, followed by quick capitulation. Sen. Marco Rubio (R-FL) went from cracking jokes about Trump’s penis size in 2016 to being such an abject bootlicker that Trump has now nominated him for secretary of state.
There are other kinds of fear that Trump supporters have instilled in the few Republicans who do stand up to him. Sen. Mitt Romney (R-UT), a consistent Trump critic who voted to impeach him twice, told a reporter that he spends $5,000 per day on security for himself and his family, thanks to a deluge of violent threats from MAGA terrorists. That is a big reason he decided not to run for re-election.
Whatever happens, we can already see that the fear that Trump is much more prepared to exercise power than he was in his first term is well founded. He is doing his utmost to have his own personal coterie of loyalists and cranks in place the moment he takes office. I’m not confident about the willingness of Republican senators to stop him.
