Republicans grapple with controversial Trump recess appointment scheme
Republicans are grappling with the idea that President-elect Trump could test the limits of his constitutional authority by appointing controversial picks to his Cabinet with recess appointments.
One source who has spoken to Trump believes that idea — trying to forcibly adjourn Congress, even if the Senate does not affirmatively agree to do so — has been seriously considered in his circle.
Trump’s ideological allies publicly argue that such a move is possible, even as other experts on the Constitution balk.
Republicans skeptical of the idea breathed a sigh of relief when former Rep. Matt Gaetz (R-Fla.) withdrew from consideration to be attorney general on Thursday. That sent a clear signal that GOP senators will not always fall in line with Trump’s wishes.
But even with Gaetz out, the prospect of Trump trying to forcibly adjourn Congress remains on the table.
Other controversial picks, such as Robert F. Kennedy Jr. for Health and Human Services secretary and former Rep. Tulsi Gabbard (Hawaii) for director of national intelligence, are still in the mix.
Under the purported plan, the House would agree to recess, and if the Senate does not act, Trump would use Article II, Section 3 authority to recess Congress: “[I]n case of disagreement between [the House and Senate], with respect to the time of adjournment, he may adjourn them to such time as he shall think proper.”
The prospect of Trump trying to exert that authority has started to circulate among Hill Republicans, causing alarm among some of them. They worry not only about Trump prompting a constitutional crisis, but the precedent it would set.
“Most elected people have a good understanding of the fact that at some point, Democrats are going to be in charge, and any precedent we set now, or any boundaries we try to push, are going to come back to bite us,” one House Republican told The Hill. “People do not like this idea. This is a bad strategy to go down.”
Several Republican senators have also poured cold water on the idea.
“The separations of powers doctrine is pretty fundamental: three coequal branches of government. One branch can’t commandeer the other two. I think that would be the outcome,” Sen. John Cornyn (R-Texas), a senior member of the Judiciary Committee, said this week.
The intent of pushing the controversial plan could be more about pressuring the Senate GOP to support Trump’s nominees or risk an ugly battle.
Still, Trump’s allies have either declined to dismiss such a scenario or have explicitly defended it. They have not ruled out the possibility — before or after Gaetz’s withdrawal.
Speaker Mike Johnson (R-La.), whose participation would be necessary to execute the plan, did not rule out supporting the recess-appointment scheme. Johnson told The Hill on Wednesday that he would not “address hypotheticals” when asked if the idea is constitutional.
“We'll have to see what develops,” Johnson said. “There's a long tradition of recess appointments, but we'll see what happens. I hope the Senate does its job and confirms all these nominees expeditiously, because the president has a right to choose his team.”
Another complicating factor is that even if Johnson wanted to support such a move, he might not have the votes to do so, given the slim majority in the House.
Several experts argue that Trump does not have the authority to force a recess if the Senate does not take action on adjournment, or that it would hold up if Trump tried to do so.
Ed Whelan, the Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center, first brought attention to the idea — and wrote in National Review that the “disastrous” scheme would not work because the “Senate has complete authority to decide to stay in session” and inaction on the House’s desire to adjourn would not constitute disagreement.
Cato Institute adjunct scholar Andy Craig wrote that the scheme would be “norm-defying” and “unconstitutional” and that the Senate could likely just ignore any attempt by the president to try to force it to adjourn. But if Trump did try it, a “full-blown constitutional crisis” would ensue.
But a lengthy paper released Friday from the Center for Renewing America — which is home to a number of Trump allies — argued that Trump would have broad authority to declare a recess without affirmative agreement from the House or Senate.
“It is fully within the constitutional prerogative of the chief executive to judge that a ‘Disagreement’ exists without any formal certification from either House,” the paper said.
Jeffrey Clark, director of litigation and senior fellow who was a key figure in Trump’s attempts to overturn the 2020 election, was one of the authors of the Center for Renewing America paper.
Rep. Andy Harris (R-Md.), chair of the hard-line House Freedom Caucus, also said he thinks the idea is constitutional.
“It's absolutely constitutional. It's an actual writing in the Constitution that the president can do it,” Harris told The Hill this week.
Asked about those who said the scheme would not be constitutional, Harris said: “Sure. That's what lawyers do all day long. They discuss things like that.”
Another House Republican familiar with the constitutional argument doubted that Trump wanted to test the limits of the never-before-used constitutional power, but did not rule it out.
“If there's a total stonewall at some point on this stuff, unforeseen, then maybe I could see something like that happening,” the House Republican said. “It is an untested question. So not saying he won't do it, I'm not saying it can't do it, but it's an untested question.”
Mychael Schnell contributed to this story.