'Flagrantly unlawful': Experts demolish Trump’s plan of bypassing Senate to confirm Cabinet

06 December 2024

President-elect Donald Trump has floated the idea of a scheme to allow for "recess appointments" of his Cabinet. But several legal experts are pointing out that this would run afoul of the Constitution in a major way.

As the Associated Press reported in November, Trump is considering asking Republican leaders of both the House and the Senate to adjourn after he is inaugurated in order him to appoint the bulk of his Cabinet in one fell swoop, essentially bypassing the confirmation process. Incoming Senate Majority Leader John Thune (R-S.D.) has notably not taken recess appointments off the table.

But in a Friday article for the Atlantic, Yale University law professor Akhil Reed Amar, Georgetown University law professor Josh Chafetz and Columbia Law School Thomas Schmidt revealed how Trump's controversial plan is contradictory to the most foundational elements of the American system. They pointed out that "there is simply no way to do this consistent with the text, history and structure of the Constitution.

In 2020, Trump previously threatened recess appointments when Democrats gummed up the works of the Senate. And he has even weighed the option of a provision in the Constitution that allows a president to force Congress into recess by declaring them to both be in disagreement on adjournment – something that Amar, Chafetz and Schmidt say has "never been used in all of American history."

"The House Republicans’ idea seems to be to manufacture a 'disagreement' to trigger this adjournment power. First, the House of Representatives would pass a resolution calling for a recess. The Senate would then (in all likelihood) refuse to pass the resolution. Trump would then declare the houses to be in 'disagreement' and adjourn both houses for as long as he likes," the authors explained. "From there, he would start his recess-appointments spree. There is just one glaring problem: The 'disagreement' in this scenario is illusory."

The House GOP has also toyed with the idea of Trump sending the Senate home against its will and confirm all of his Cabinet nominees during the artificial "recess," which the authors called "flagrantly unlawful." Trump reportedly considered doing this in his first term.

Several of Trump's Cabinet nominees — like Defense Secretary-designate Pete Hegseth, Director of National Intelligence-designate Tulsi Gabbard and Health and Human Services Secretary-designate Robert F. Kennedy Jr. — have proved controversial even for the incoming Republican Senate majority. Republicans will have 53 seats, meaning Trump's Cabinet picks can only afford three defections in order to be confirmed. A petition calling on senators to stop Trump's most controversial Cabinet picks has accumulated nearly 55,000 signatures as of Friday.

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