WASHINGTON — President-elect Donald Trump has threatened to go around Congress to staff his administration, potentially setting up an unprecedented constitutional showdown over the power of the presidency.
“The president has won a mandate, and he will use all lawful constitutional means to fulfill that mandate on behalf of the people who voted for him,” Stephen Miller, Trump’s incoming deputy chief of staff, said Tuesday night on Fox News, confirming that Trump could sidestep the Senate to install his controversial Cabinet nominees.
Republicans in Congress, however, would have to go along with the scheme, and some key players are skeptical.
“It’s my understanding that there’s quite a parliamentary process to get to that point, and we may not have time to do it,” Sen. Chuck Grassley (R-Iowa) told HuffPost. Grassley expects to chair the Senate Judiciary Committee, which would handle the controversial nomination of Matt Gaetz for attorney general.
There will be 53 Republican senators in the next congressional session, and several have suggested Gaetz won’t get 50. The House Ethics Committee said this year it was investigating the former congressman for sexual misconduct, illicit drug use and other questionable behavior.
Sen. John Thune (R-S.D.), the incoming Senate majority leader, has noted that if there aren’t the necessary 50 votes to confirm a nominee, then there won’t be 60 votes to overcome Democratic objections to adjourning the Senate.
Logistics aside, confirming nominees is a fundamental part of a senator’s job, and many Republicans likely would have reservations about not doing their constitutional duties.
“I’m not for circumventing the advice and consent function of the Senate,” Sen. John Cornyn (R-Texas) told HuffPost.
The president does have a workaround: a clause in the Constitution that says he can send Congress into recess himself if the two chambers disagree on adjourning. During his first term, Trump threatened to use the adjournment power but didn’t follow through. No president has ever used the power before, and it would likely wind up facing a strong court challenge.
“I’m not sure you want to experiment with something that important,” Cornyn said. “So I assume there’d be litigation that would ensue. And so why don’t we just do it the old-fashioned way?”
Still, influential people in Trump’s orbit are pushing the presidential adjournment concept.
“The American people expect the Senate to confirm all of President Trump’s qualified nominees,” Mike Davis, an influential Trump booster and former Senate Judiciary Committee staffer, told Fox News Digital this week. “If the Senate refuses to do that, the Constitution provides a mechanism for the president and the executive brand to [sidestep] them.”
If Trump wanted to adjourn Congress himself, the likeliest scenario would be for the House to adopt a concurrent resolution on adjournment, creating a “disagreement” when the Senate inevitably refuses to go along.
House Speaker Mike Johnson (R-La.) told HuffPost on Wednesday he hasn’t talked to Trump about adjourning for recess appointments.
“I’ve had no conversations with him about that subject,” Johnson said. “There’s a precedent, a long precedent, of recess appointments, but I hope that the Senate will do its work and do it expeditiously and approve these nominees because I think every president has the right to choose their team.”
Democracy In The Balance
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Few lawmakers are familiar with the constitutional mechanism for a president to adjourn Congress, and several suggested that at this point, the discussion about recess appointments is merely an effort to pressure the Senate to act on Trump’s nominees.
Trump ally Sen. Mike Lee (R-Utah) said, for instance, that the president shouldn’t “unilaterally disarm” or swear off the possibility of recess appointments, even if his plan is to stick with regular order.
“This is a just in case,” Rep. Matt Rosendale (R-Mont.) told HuffPost. “He’s letting the Senate know that if they are going to slow-walk or sandbag his confirmations that he’s going to find another way around it.”