Will Trump Be Able to Install His Extreme Cabinet Without Senate Confirmation?
Donald Trump has followed up his election win earlier this month by tapping a series of devout loyalists, conspiracy theorists, and zealots to occupy the highest ranks of the federal government. Some of them — like Matt Gaetz, Pete Hegseth, and Robert F. Kennedy Jr. — are so thinly qualified for the roles Trump wants them to take on that they might have trouble making it through the Senate confirmation process, even though Republicans control the chamber.
It may not matter. Trump has been pushing the Senate to let him make recess appointments — or to agree to adjourn so that Trump can install the people he wants without a vote — arguing that his picks need to get into their offices as soon as possible. Incoming Senate Majority Leader John Thune (R-S.D.) has indicated he’s open to the idea, which would be a remarkable show of deference to Trump, as well as an abdication of the Senate’s constitutional duty to offer “advice and consent” on some of the most consequential presidential nominees.
Regardless, as Rolling Stone has reported, Trump’s string of extreme nominations are about one thing: showing Congress who’s boss, and forcing Republicans to bend to his will. Here’s everything you need to know about how he’s trying to exert it:
Which of the president-elect’s administration picks need Senate confirmation?
The incoming president usually has to fill around 4,000 open executive branch roles when beginning their administration, about 1,200 of these require Senate confirmation. Most of these nominations will take place outside of the public eye, but some constitute the most high-profile and powerful positions within Trump’s new government. These include the 15 members of the president’s Cabinet — who will head executive agencies like the Department of Defense, Department of Education, Department of Health and Human Services, The Department of State, and the Department of Justice.
High-level positions within the 15 executive agencies also require Senate confirmations, as well as high ranking military officers, ambassadors, and a slew of foreign service officers.
How does the Senate confirmation process work?
The Appointments Clause of the Constitution holds that the president has the authority to “nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States.”
The role of “Advice and Consent” is where the Senate comes in. The idea, as written by the founders, is that while the president has the power to nominate executive officers, he is still accountable to voters through their elected representatives. In short, the advice and consent role of the Senate is intended as a check on presidential power.
When an individual is nominated, their candidacy will be referred to the Senate committee affiliated with the nominee’s prospective executive agency. For example, a potential ambassador’s nomination will first be referred to the Senate Foreign Relations Committee, and the nominee for Secretary of Defense will be referred to the Senate Committee on Armed Services. These standing committees will typically investigate the nominee and hold hearings where they can directly question the nominee on their record and plans if confirmed to the office. They then refer the nomination to the full Senate for a confirmation vote.
In some cases, particularly those involving lower-ranking appointments or military promotions, committees will refer large dockets of nominations for confirmation in order to expedite the process.
While Republicans hold a narrow majority in the Senate, it’s already becoming clear that some of Trump’s prospective Cabinet members may face uphill confirmation battles. Former Rep. Matt Gaetz (R-Fla.) — Trump’s pick for attorney general — resigned from Congress days before the House Ethics Committee was scheduled to vote on whether to release a report on their investigation into allegations that Gaetz had a sexual relationship with a minor. Several members of the Senate, including Republicans on the Senate Judiciary Committee, want access to the ethics investigations findings before signing off on Gaetz’s confirmation.
Other potential nominees of that could be difficult to confirm include Trump’s desire to install Fox News host Pete Hegseth — who was once investigated for sexual assault — as secretary of defense, as well as vaccine conspiracy theorist Robert F. Kennedy Jr. to head the Department of Health and Human Services.
What’s the deal with recess appointments?
When the Constitution was first written, members of Congress did not have access to cars, planes, or trains that could take them from their respective states to Washington, D.C., within a matter of hours. Because senators were often away from the Capitol for months at a time, if an executive appointment was vacated, the position could stay empty as long as Congress was out of session.
In order to remedy this, the framers added a provision granting the president a limited exception to the “advice and consent” role of the Senate in confirming appointments. Article II, Section 2, Clause 3 of the Constitution provides the president the authority to “fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
In plain text, the president can appoint someone to an executive office without a Senate vote if the Senate is in recess. The appointee would need to be confirmed through a vote before the end of the next congressional session. This means that a recess appointment could remain in power without a Senate vote for about two years before the president would have to either reappoint them under another recess, or reappoint them and have them submit to a standard confirmation.
Is Trump going to try to appoint his nominees through recess appointments? How does the Senate feel about this?
It sure looks like it. Earlier this year, longtime Senate Republican Leader Mitch McConnell (R-Ky.) announced he would be stepping down from his role as head of the GOP Caucus. As Senate Republicans prepared to vote on his replacement, Trump made his views clear.
“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,” he wrote on Nov. 10. “We need positions filled IMMEDIATELY!”
All three candidates vying to replace McConnell — Sen. John Thune (R-S.D.), Sen. John Cornyn (R-Texas), and Sen. Rick Scott (R-Fla.) — indicated that they would be open to the use of recess appointments in order to ram through Trump’s nominees. On Thursday, Thune — who won the leadership vote — told Fox News that “all the options” are on the table.
“All these people have a process that they have to go through. All these nominees are — it’s a — you know, advice and consent. That’s the Senate’s constitutional role when it comes to confirmation of nominations to the executive branch of the government. And we take that role seriously,” he said. “But we also are not going to allow the Democrats to obstruct or block President Trump and the will of the American people.”
Thune and Republicans in the Senate would only need a simple majority vote to pass a resolution to adjourn and let Trump start appointing people.
Can Trump still force his picks through if the Senate doesn’t agree to let him make recess appointments?
Conservative lawyer Ed Whelan has said he’s hearing that Trump could use a provision of the Constitution that allows the president to unilaterally adjourn Congress, and then appoint who he wants. Article II, Section 3 holds that “in Case of Disagreement between [the Senate and the House] … he may adjourn them to such Time as he shall think proper.” No president has ever done this.
Whelan wrote in an op-ed for The Washington Post that House Speaker Mike Johnson would need to be complicit in the scheme, as it would require the House to adopt a resolution calling for the adjournment of Congress, and then if the Senate didn’t also adopt the resolution it would constitute the “disagreement” that would allow Trump to essentially put Congress in a timeout — and ram through his nominees.
It wouldn’t be easy, though. Johnson may introduce a resolution to adjourn Congress in the House, but getting a caucus full of Republicans who despite Gaetz to vote for it might be tough. The move would also be hit with legal challenges, as the constitutionality of using the provision in this particular way is dubious. The Supreme Court is, of course, controlled by conservatives, three of whom Trump appointed in his first term.
If Trump even tried this, it would mark an unprecedented affront to the system checks and balances that has defined the United States since its inception, and a terrifying sign of what’s to come from a totalitarian president who has demonstrated he has zero regard for democracy.
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