Barely a week after securing election to the White House, former president Donald Trump provoked the perennial question of his first term: “Can he do that?” This time, Trump demanded that anyone seeking to be elected as the next Senate majority leader commit to allowing him to make short-term recess appointments to fill top vacancies in his administration. With varying degrees of specificity, all three contenders for GOP leader committed to doing whatever it takes to ensure swift seating of Trump’s picks in the incoming administration.
Trump can do that. But why would a president – or his party in the Senate – want that? Addressing Trump’s demand could be one of the first challenges confronting the Senate’s newly elected majority leader, Sen. John Thune (R-SD).
Here’s what you need to know.
Yes, it’s in the Constitution
Article II, Section 2, Clause 3 grants the president authority to fill vacancies with temporary appointments when the Senate is on recess. Such appointments last until the end of the next session of the Congress. That means someone given a recess appointment in 2025, say as secretary of agriculture, could serve until that Congress adjourned for good (either late in 2025 at the start of 2026).
Importantly, one paragraph earlier, the Constitution affords presidents the power to nominate – with the advice and consent of the Senate – appointees ranging from ambassadors to Supreme Court judges, and “all other officers” of the U.S.
Typically, presidents make appointments by following the advice and consent path. Presidents select, vet, and send nominations to the Senate. The committee with jurisdiction over the relevant agency, department, or federal court performs their own background checks, typically holds a hearing, and votes whether or not to forward the nomination to the full Senate with the committee’s approval. A Senate majority has discretion over whether or not to hold a confirmation vote – no filibusters allowed. It can take months for the Senate to confirm even uncontroversial nominees and the time to confirmation has been rising steadily over recent decades.
Recess appointments, in contrast, historically were a stopgap measure: Traditionally, presidents then formally nominated the appointee once senators came back in town. So while Trump’s demand for recess appointments stretches their historical use, there’s certainly a constitutional foundation for the general practice.
The Supreme Court curtailed the practice
President Obama was the last president to make a recess appointment. What gives?
President George W. Bush began to deploy recess appointments more aggressively during his second term: He opted for temporary appointments in several cases after the Democratic Senate rejected his nominee. In response, the Senate curtailed recesses. The Senate returned every fourth day during an extended recess for a “pro forma” session – which foreclosed Bush’s opportunities to make recess appointments.
But Obama went ahead and made recess appointments anyway, provoking a legal challenge. In 2014, the Supreme Court declared such appointments unconstitutional, finding that the Senate decides what constitutes a recess. Going one step further, the court said three-day breaks were too short for presidents to make recess appointments. The court instead declared valid recesses had to last at least 10 days. That longer buffer – along with the Senate’s practice of pro forma sessions – has precluded presidents from making recess appointments as a way to circumvent the Senate confirmation process.
How exactly would Trump’s vision work?
Two things must happen for the Senate to adjourn for more than 10 days.
First, if a chamber seeks to adjourn for more than three days, the Constitution requires the other chamber’s consent. Smart move on the part of the framers: They thwarted one chamber from leaving town and thus disrupting the legislative process. So if the GOP-controlled Senate wants to go on recess to allow Trump to make recess appointments, it would need the GOP-controlled House to concur.
Second, the Senate must agree to adjourn. One option is to agree to a motion to adjourn until a specific date and time. Alternatively, the Senate could agree to an adjournment resolution. Under Senate rules, neither the motion nor resolution are “debatable,” which means no option to filibuster: A simple majority vote would suffice.
Senate precedents do allow for essentially unlimited amendments to the motion or resolution. And conceptually, Democrats could try to be the last team standing and offer so many amendments that Republicans throw in the towel. Likely? Probably not. But stranger things sometimes happen in the Senate.
After 10 days, Trump could start making his recess appointments – free of either Senate advice or consent.
Testing Republicans (and cutting corners)
On Jan. 20, 2025, unified GOP control of Congress and the White House begins – if current projections for House races play out as anticipated. A Republican-controlled Congress presumably would be eager to consider and willing to confirm (at least most of) Trump’s nominees. So why is Trump threatening to take the norm-bending path instead? And would a GOP Senate really give up its constitutional authority to be the final say on the president’s picks?
Perhaps Trump was testing the loyalty of Republican lawmakers. Would they dare cross Trump by insisting on their institutional authority to second-guess Trump’s picks? Of course, Trump might also have been stirring the pot to force the GOP contenders for majority leader to make a clear public commitment to Trump.
Trump might also favor recess appointments as a way to cut corners in assembling his team. By fast-tracking, he avoids the Senate vetting of appointee backgrounds or potential conflicts of interests. And Senate Democrats don’t get a chance to publicly cross-examine Trump’s picks. And this route leaves no chance that intense sunlight on a nominee’s background or inexperience could encourage reluctant Republicans to sink them.
However senators react to Trump’s recess appointment ploy, this won’t be the last time the incoming president forces Republicans to choose a side: Be loyal to Trump, or to their rights and responsibilities as lawmakers.
