Throughout his career in business, media, and politics, Donald Trump has demonstrated a willingness to challenge the norm.
But experts say the incoming US president’s latest proposal to abolish the established process used to appoint ministers in the next administration poses significant risks to the country’s rule of law. are.
Days after winning this month’s election, President Trump on Nov. 10 invoked a provision in the U.S. Constitution that allows him to appoint Cabinet members without Senate confirmation.
“Republican senators seeking coveted leadership positions in the U.S. Senate must agree to recess appointments (in the Senate!) or they will not receive timely confirmation.” , President Trump posted on social media, and all three vying for the leadership role will soon say they will follow suit.
Proposals to use so-called “recess appointments” are concerning as President Trump continues to roll out a list of controversial candidates for key government positions, including far-right flamemonger Matt Gaetz as head of the U.S. Department of Justice. is causing.
Analysts told Al Jazeera that bypassing the Senate would weaken the checks and balances that Congress uses to oversee the executive branch, while effectively giving Trump more power as Republicans hold “triple” control of the White House and the Senate. He said it would give him even more power. and the House of Representatives.
“Cabinet selection is the primary way a president exercises power,” said David Froomkin, an assistant professor of administrative law at the University of Houston Law Center.
“Eliminating the most important check on power would give the president greater power.”
Republican senators seeking coveted leadership positions in the U.S. Senate must agree to recess appointments (in the Senate!). Without this, you won’t be able to get approval in a timely manner. In some cases, voting can take more than two years. this is…
— Donald J. Trump (@realDonaldTrump) November 10, 2024
remnants of the past
But what exactly is a vacation plan?
This process dates back to the early days of the United States, when the U.S. Congress was in recess for months at a time, usually during the summer.
When a vacancy occurs, the U.S. Constitution allows the president to appoint someone without confirmation, but only until the end of the next Congress, said a senior official at the law firm Covington & Burling. Counselor Gabe Neville explained. Regarding regulatory practices.
“In modern times, most of the time Parliament is in session, but there have been some changes in how that process works and is used,” Mr Neville said.
For example, because lawmakers no longer travel by stagecoach or rail, presidents no longer need to urgently fill vacancies when Congress is out of session for months.
However, appointments continue during the recess, although not at the cabinet level.
Presidents have primarily used this provision to speed up the confirmation of federal judges, but technically the power applies to all appointees, including Cabinet members and Supreme Court justices.
For example, former US President Bill Clinton made 139 recess appointments to full-time positions, and his successor, President George W. Bush, made 171 recess appointments. President Barack Obama then made 32 appointments before a 2014 U.S. Supreme Court ruling limited the president’s ability to invoke recess. Authorizes the Senate during periods when it has been in recess for at least 10 days.
Wary of giving the president too much power, Congress has in the past held so-called “pro forma” sessions when no real work is being done just to block the president from exercising his powers. This has allowed us to circumvent this provision.
“So the legislators from Maryland and Virginia, who live nearby, come in, open the House and Senate, and then immediately adjourn for the day, but technically it’s still in session,” Neville said. told Al Jazeera.
But in theory, members of Congress could decide to adjourn to allow the president to make his promise to adjourn – and Mr. Neville said that if Republicans took control of Congress and President Trump He said there is an opportunity for Republicans now that they are in the House. Lawmakers do that.
“And we’ve never really seen anything like that before,” he said.
send message
Still, it remains unclear if or when President Trump will invoke it, or whether Congress will go into recess to approve presidential appointments.
The new Congress is scheduled to open on January 3, three weeks before Inauguration Day, and Republican senators are expected to immediately begin hearings on President Trump’s Cabinet nominees.
If President Trump appoints one of his nominees while Congress is in recess, that person will remain in office for the remainder of the two-year Congress.
But President Trump, who has been accused of authoritarianism by critics for mentioning the provision, has told lawmakers — even members of his own party — that he has responded to little opposition from lawmakers. You’re sending a message that you may not have the patience.
“If the Senate accedes to President Trump’s demands, it would be the first loud sound of the Constitution being broken,” Michael Waldman, director of the Brennan Center for Justice at New York University School of Law, said in an op-ed.
Nicholas Xenakis, a former chief of staff to the late Sen. Dianne Feinstein who also works at Covington & Burling, told Al Jazeera that the president-elect may also be using his power as “leverage.” He said there is.
“It’s like, ‘Hey, senator, don’t let me use this power.’ Hurry up and confirm the nominees,” he said.
“(Opposition parties) often have very long delays in confirming nominees because they don’t support the president’s policies,” Xenakis said, adding that such situations were common during President Trump’s first term and during the administration of Democrat Joe Biden. He added that there was also.
“So this could just be used as a way to push it back,” he said.
avoid public scrutiny
Still, some of President Trump’s most controversial nominees, such as Gates, are expected to face opposition from Republicans as well, although such a backlash is unlikely because Republicans control the Senate. are.
Gaetz, a former Florida congressman who resigned from Congress last week after being nominated by President Trump to lead the Justice Department, faces a series of investigations into allegations of improper and illegal conduct.
His resignation comes days before a scheduled House Ethics Committee investigation into allegations against him, including sexual misconduct.
Mr. Froomkin, of the University of Houston Law Center, said Mr. Trump’s nominees may be too extreme to be approved by the Republican-controlled Senate, which could be a reason to hold up the nominations.
The president-elect may also want to avoid the public scrutiny that comes with the confirmation process, especially for candidates who “have skeletons in the closet,” Froomkin said.
Or Trump may be invoking recess appointments simply because he wants to maintain control, Froomkin added. “Trump says he wants to be a dictator,” he told Al Jazeera. “He may simply resent the existence of checks on his power.”
Meanwhile, Republican leaders have so far appeared reluctant to publicly override the possibility of recess appointments altogether.
Republican Sen. John Thune, who was chosen last week to be the House’s next majority leader, vowed to maintain an “aggressive schedule” until Trump’s nominee is confirmed and kept the recess off the table. .
Republican House Speaker Mike Johnson has also not ruled out recessing Congress to allow the next president to appoint Cabinet members without Senate approval.
“We will evaluate all of them at the appropriate time and make the appropriate decision,” Johnson said in an interview with NBC News on Sunday. “There may be some functionality like that. We’ll have to see how it plays out.”
