President-elect Donald J. Trump’s rapid move to stock his administration with loyalists, some viewed with skepticism even by members of his own party, is testing both his grip on Senate Republicans and the boundaries of executive power.
Mr. Trump has made it clear that he wants the option of going around the Senate to install cabinet and other appointees without the chamber’s approval. He could do so with what is known as a “recess appointment,” which allows a president to act on his own when the Senate is not in session.
But it is not clear whether Republican senators would go along with that plan by going out of session at Mr. Trump’s request. Some of them have raised particular alarm at the selection of former Representative Matt Gaetz of Florida, the ethics-challenged, hard-right firebrand who has a habit of insulting fellow Republican lawmakers, for attorney general.
Mr. Trump could try to force the issue, invoking an untested clause of the Constitution that could be challenged and even end up before the Supreme Court.
Here’s how it works.
Recess appointments were meant to be a logistical fail-safe.
Article II of the Constitution says that the president can name officials “by and with the advice and consent of the Senate.” That has been interpreted for centuries to mean that the chamber is responsible for vetting and ultimately confirming the president’s nominees.
But when the Constitution was written in the country’s early days, travel was by horse, and the Senate often was out of session for weeks or months at a time. If a critical vacancy arose, senators could not necessarily convene quickly to confirm a replacement. So the founders included an exception that allowed the president to fill vacancies that arose during a recess without any action by the Senate.
That is known as a “recess appointment.” There is far less need for it in the era of cars and air travel, but presidents have invoked it in modern times as a matter of convenience and political expediency.
Recess appointments are common, but usually for lower-level officials.
Several presidents have used recess appointments. President Bill Clinton made 139 recess appointments, and President George W. Bush made 171, although neither used the maneuver to fill cabinet positions as Mr. Trump wants to do.
President Barack Obama filled 32 positions using recess appointments, including the assistant attorney general and several under secretary roles at various departments.
Because recess appointments were never designed to be permanent, the appointee’s term expires at the end of the next congressional session. There are also limitations on how and when a recess appointee can be paid.
Because of a constitutional quirk, neither chamber recesses for long.
Both the House and Senate frequently take long breaks. But to comply with a constitutional requirement that neither chamber adjourn for three days or more without the consent of the other, they typically convene for a brief period every three days.
Little business, if any, is conducted during these meetings, called “pro forma” sessions. They are also used to prevent recess appointments or pocket vetoes, a way of allowing a bill to die if it is left unsigned by the president when Congress adjourns. The sessions usually involve the saying of a prayer and the Pledge of Allegiance before a single member bangs the gavel to adjourn and restart the three-day clock.
In 2014, the Supreme Court unanimously ruled that Mr. Obama had violated the Constitution by making recess appointments during a break in the Senate’s work when the chamber was convening pro forma sessions. Those breaks were too short to be considered recesses, the justices ruled.
They said the Senate must be out for at least 10 days for it to count as a recess for the purpose of the president’s appointment power.
The plaintiff in that case? Senator Mitch McConnell of Kentucky, the Republican leader who is stepping down from his leadership role in the next Congress.
Trump could try to force a recalcitrant Senate to recess, but the power is untested.
Article II of the Constitution allows a president to adjourn one or both chambers of Congress under certain circumstances, including if the House and Senate disagree about when to be in session.
In that scenario, the Republican-led House could pass an adjournment resolution and if the Senate refused to approve it, Mr. Trump could, as the Constitution says, “adjourn them to such a time as he shall think proper.” In theory, he could then make recess appointments. It appears that no president has ever tried that particular maneuver.
Edward Whelan, a conservative scholar, wrote in a recent Washington Post opinion piece that the scenario was a “cockamamie scheme” that Speaker Mike Johnson should denounce and refuse to implement.
Even if he went along, it is highly likely that Democrats would follow Mr. McConnell’s example and challenge Mr. Trump’s move as unconstitutional, almost certainly landing the question before the Supreme Court. Such a case, however, could take a long time to be adjudicated. By then, a theoretical Attorney General Matt Gaetz could have run the Justice Department for months or years.
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