GOP considers handing Trump a path around Senate confirmations

Incoming Senate Republican leadership has flirted with handing over a significant portion of its power to allow President-elect Donald Trump a chance to avoid the Senate’s confirmation process entirely to staff up the administration in his second term.

Ahead of Wednesday’s leadership elections, Trump and his allies have pushed the candidates to potentially allow recess appointments to his Cabinet and other positions, which experts said would cause a major shift away from the Senate’s constitutional “advice and consent” role.

The Constitution’s recess appointments power allows a president to make a temporary appointment to a position that would normally require Senate confirmation while the Senate is in recess. Those recess appointments would last until the end of the upcoming session of Congress, in this case 2026.

For nearly two decades under bipartisan leadership, the Senate has avoided going into recess to prevent access to recess appointments. The pressure campaign to change that started with Trump on Sunday, ahead of the GOP Senate race to succeed outgoing Minority Leader Mitch McConnell, R-Ky., as leader candidates jockey for position.

“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,” Trump posted on X. “Sometimes the votes can take two years, or more. This is what they did four years ago, and we cannot let it happen again. We need positions filled IMMEDIATELY!”

Without the use of recess appointments at the beginning of Trump’s first term in 2017, the Senate confirmed the Homeland Security and Defense secretaries on Jan. 20, attorney general Feb. 8, and the rest of the Cabinet by April. Republicans controlled the Senate all four years of Trump’s first term and made a rule change in 2019 to allow nominees to be confirmed with as little as two hours of floor debate.

Only a handful of Trump’s nominees did not advance in his first term, most of whom withdrew over their stated concerns about their health or ability to unwind their private holdings to meet government ethics standards. A bare few withdrew after open opposition by Republicans.

Trump and his allies, including billionaire Elon Musk, have backed the idea of allowing recess appointments as they gear up for the new administration.

Josh Huder of the Government Affairs Institute at Georgetown University and other congressional experts said that allowing the Senate to recess and allow such appointments would be a sea change to the institution.

“It is an enormous, enormous power grab is what Trump is trying to do, allowing the executive to circumvent Senate-confirmed positions,” Huder said. “It is a big deal in terms of the separation of powers allowing the president to go around the Senate.”

Majority leader candidate Sen. Rick Scott, R-Fla., most openly embraced Trump’s push for recess appointments over the weekend, posting on X “100% agree. I will do whatever it takes to get your nominations through as quickly as possible.”

Similarly, Sens. John Thune, R-S.D., and John Cornyn, R-Texas, have entertained the possibility in their own social media posts over the weekend.

“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. We cannot let Schumer and Senate Dems block the will of the American people,” Thune said on X.

Cornyn said he would not allow Democrats to bog down the nomination process in his own posts on X.

“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.

In a letter to his colleagues laying out his candidacy Tuesday, Cornyn said he would work with the Trump administration to confirm nominees as swiftly as possible but did not state a position on recess appointments.

Cornyn, a former whip, and Thune, the current minority whip, are considered the frontrunners in the race.

Sarah Binder, a senior fellow at the Brookings Institution, said Tuesday that recess appointments have been made for hundreds of years, but Trump’s approach appears to be different. Binder said Trump’s pitch to Republicans appears to be an end-run around the normal process, not a supplement.

“What is unusual about this threat, plan or what-have-you from Trump is that he envisions it not as the traditional way you think about recess appointments,” Binder said. “It seems the president seems to think he can use it to circumvent the Senate.”

The Senate adopted using “pro forma” sessions to limit recesses under late Majority Leader Harry Reid, D-Nev., in the George W. Bush administration, and one continued by McConnell.

That’s led to a sharp drop in recess appointments, according to the Congressional Research Service. President Bill Clinton made 139 recess appointments, President George W. Bush made 171, and President Barack Obama just 32.

The Supreme Court restricted recess appointments in 2014, ruling unanimously in NLRB v. Noel Canning that several Obama administration recess appointments to the National Labor Relations Board violated the Constitution.

The decision said the Senate’s “pro forma” sessions in between voting sessions, when the NLRB members were appointed, did not constitute a recess long enough to allow for recess appointments.

For Trump to make recess appointments, the Senate would have to formally recess, which would take a concurrent resolution in both chambers, Huder said.

While Democrats may not be able to entirely stop either chamber from recessing, Binder said they could make it painful for Republicans with vote-a-rama like efforts to slow down the process. Binder said that in order to allow for recess appointments, Senate Republicans would have to be nearly unanimous in a decision to leave town at the height of their political capital, right after winning a government trifecta.

At least one Republican has expressed reservations about going on recess so Trump to have his way with his picks. Sen. Susan Collins, R-Maine, one of the loudest Trump critics remaining in the party, told reporters Tuesday that she had her problems with nominations, but would prefer Republican leadership work to make the process work better within the chamber.

“There’s no doubt that the nomination process takes far too long and that we confirm too many appointees, there are some whose roles are not significant enough that they warrant Senate confirmation. Our confirmation responsibility is, however, a constitutional responsibility, and it’s not one that I take lightly,” Collins said.

Collins previously opposed the 2019 rule change lowering the debate time for most nominees, as well as the 2013 rule change lowering the threshold to advance most nominations. However, Collins voted for the 2017 rule change lowering the threshold to advance Supreme Court nominations.

Huder also pointed out that allowing recess appointments could intensify the partisan tit-for-tat in the chamber that has led successive majorities to lower the thresholds for getting nominees through the chamber.

Muscling through a resolution to recess the Senate would require a political unity that Huder said may be hard to achieve and could be spent in other places.

“They can make promises, and I don’t know if they are going to be able to follow through on these things,” Huder said. “It does offer the political cover of saying ‘I am working with the president and on his side’ as they approach the election for majority leader.”

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