The News
Donald Trump is pushing Republicans to let him steer his top staffers around the Senate confirmation gauntlet — a controversial strategy that would face serious obstacles, despite his party’s deference to him.
Trump waded into the race for Senate Republican leader on Sunday by calling for the candidates to go along with recess appointments, a mechanism for approving executive-branch nominees that carries its own set of restrictions. And even though all three GOP senators seeking to become majority leader quickly entertained Trump’s terms, they would likely find those limitations to be risky in practice.
The biggest hurdle to Trump’s hopes: Taking the recesses that are required to even make a recess appointment. For years now, senators in both parties have scheduled short “pro forma” legislative sessions every few days in order to block presidents from making recess appointments. The Supreme Court found in 2014 that the Senate must be out of session for 10 days for a president to make recess appointments.
So if Republicans wanted to scrap the short sessions or recess as soon as Trump takes office in January and open the door to recess appointments, they would have to accept a 10-plus-day delay to any progress on Trump’s first-100-days agenda.
Not to mention that there are several pitfalls involved in even trying to recess the Senate for an appointment to avoid the confirmation process. While it takes only a simple majority vote to recess, Democrats could offer amendments to any recess resolution, effectively creating an indefinite delay. Republicans could stop that, but they’d need 60 votes – meaning more than a half-dozen Democratic supporters.
Republicans could also try to shut down Democrats’ objections by changing precedent for Senate recesses, a smaller-scale version of the “nuclear option” that both parties have employed to weaken the filibuster in the past. That would almost certainly invite Democrats to exploit any changes the GOP makes next year as soon as they manage to retake power.
Trump has another unprecedented option if he wants to rely on recess appointments: He could try to use his constitutional power to force an adjournment. He threatened to do just that in 2020 during the pandemic, as the Senate stayed away from Washington for weeks, but ultimately begged off. That approach would likely invite legal challenges.
Burgess’s view
If Trump wants his nominees confirmed by what’s likely to be a 53-seat Republican majority, he may just want to trust his party’s next Senate leader to do that through the regular system, whether it’s current GOP whip John Thune, former whip John Cornyn, or Sen. Rick Scott.
There’s a critical question underpinning Trump’s litmus test here: Republicans only need 50 votes to confirm nominees for his full term or for lifetime positions in the federal bench, so why would he need recess appointments, anyway?
One possible answer is that Trump is considering nominees he isn’t sure can win 50 out of 53 Republican votes.
Recess appointments do allow presidents to skirt the Senate’s laborious confirmation process, but they come with drawbacks: They are temporary, unpaid and offend senators’ sensibilities by appearing to undercut the legislative branch’s independence.
It’s possible for the Senate to get to work on Trump’s Cabinet picks starting on Jan. 3 when Republicans take over – and his threats to do recess appointments could make Democrats more amenable to speedy votes on Jan. 20. If the Senate digs in on confirmations, it can move more than a dozen of them per week. The only exception is for Supreme Court, appeals court and cabinet nominees, which have more required time for debate than lower-level nominees.
Here’s another way of looking at the recess appointments conundrum: Trump would need 50 votes to change the rules and make them easier … but he’d also need 50 votes to simply confirm any individual nominee who might require a rules change.
In other words, he might find it more efficient to work through the regular confirmation rules and avoid rabbit holes, both procedural and legal.