In the lead-up to his return to the White House in January, following his recent re-election, President-elect Donald Trump is busily assembling his cabinet. Typically, appointments of top government officials must undergo scrutiny and approval by the Senate, a process that can be time-consuming. According to Reuters, Trump has indicated that he may appoint his cabinet members (those in high-level executive positions) without Senate confirmation.
As per the U.S. Constitution, the Senate and the President share the authority to appoint senior executive officials. Senators usually conduct public hearings to question nominees for positions such as Secretary of Defense, and then vote on whether they are suitable for the role.
With 100 seats in the Senate and approximately 1,000 government positions requiring Senate confirmation by a majority vote, the confirmation process can be quite intricate.
During Trump’s first term (2017-2021), most of his cabinet nominees were easily confirmed, though the Senate did reject some candidates. Others, like Labor Secretary nominee Andrew Puzder, were forced to withdraw due to apparent lack of adequate support.
According to the “Partnership for Public Service,” an organization that aids presidential transitions, the average confirmation time for President-elect Joe Biden’s cabinet appointments was 191 days, while for Republican President George W. Bush, it averaged 85 days.
This time around, Trump is hoping the Senate will waive its oversight role and allow him to make “recess appointments.” With the Republicans set to control the Senate next year with at least 52 seats, Trump is urging the Senate to be in recess when he takes office in January, so that his nominees can assume office without Senate review, including Attorney General nominee, former Congressman Matt Gaetz, and Health and Human Services Secretary nominee Robert F. Kennedy Jr.
The U.S. Constitution permits the President to make recess appointments when the Senate is not in session to fill vacant positions, but officials appointed this way can only serve for a maximum of two years.
All outgoing Presidents have utilized this provision. According to the Congressional Research Service, Democratic President Barack Obama made 32 recess appointments, while George W. Bush made 171.
Since 2007, Congress has increasingly used scheduling tactics to prevent such situations from arising.
In 2014, the Supreme Court upheld this practice, ruling that a President can only make recess appointments when the Senate is in recess for 10 days or longer.
Trump’s strategy is to request the Senate to be in recess for at least that duration.
It is possible. According to the Constitution, when there is disagreement between the Senate and the House of Representatives on whether to recess, the President can temporarily recess. If the Republican-controlled House votes to recess and the Senate does not, Trump can invoke this power.
Next year, the Republicans not only control the Senate, but they also have a slight majority in the House.
In the Senate, Trump allies like Senator Rick Scott of Florida quickly voiced support, while other Republicans expressed reluctance to relinquish such a significant power.
Incoming Senate Republican Leader John Thune did not rule out the possibility of recess appointments. He stated on Fox News on November 14, “All options are on the table, including recess appointments.”
In the House, Speaker John Johnson, a close ally of Trump’s, has not publicly expressed his stance on the idea. Should he decide to push forward with this plan, he would need almost full support from all of his Republican colleagues. In the upcoming House with a total of 435 seats, Republicans may have less than a three-vote margin.