Understanding the Cabinet Confirmation Process

Over the past few weeks, news outlets have been inundated with articles and opinions on President-elect Trump’s 15 choices for his Cabinet. All of us have probably learned something about each of them. However, do you understand the process that must take place before the President and his new Cabinet are able to get to work for the American people?

Between now and January 20, 2025 — Inauguration Day — each of them will be put through a rigorous confirmation “sprint” with the goal that they can start work on Day 1. The reason for this rigorous confirmation is found in the framers’ Constitutional design.

After separation from a kingly rule and understanding the sinful nature of mankind, the framers of the Constitution were determined to avoid concentrating power in any one individual, so our unique constitution distributes authority across three branches of government, with checks and balances to distribute and control power.

The Process

The Constitution Article II, Section 2 divides the responsibility of filling top positions in the executive branch between the president and the Senate — the president nominates Cabinet secretaries, and the Senate confirms them.

First, the president-elect’s transition team nominates appointees and sends their nominations to the Senate.

Second, the Senate determines whether to confirm the nomination.

Third, the president presents a signed commission to the successful nominee, and he or she is sworn in, assuming authority to carry out the duties of the office.

Responsibilities of the President-elect’s Team

The president-elect’s transition team selects, vets and interviews prospective appointees, but the final decision belongs to the President-elect. Candidates are guided in completing various forms, such as financial disclosure reports, a national security questionnaire, and meetings with an ethics official. The FBI typically does background checks and submits their reports, occasionally helping candidates mitigate any conflicts of interest if found.

Responsibilities of the Senate

The Senate’s executive clerk refers a nominee to a specific committee(s) based on rules and precedents. That committee in turn investigates the nominee. Senators may then begin to investigate a nominee’s character, qualifications, and policy views. In 2025, these committee hearings can begin as soon as the 119th Congress is sworn in on January 3, 2025. The committee can either send a nomination to the full Senate for the vote, report favorably with a recommendation, report unfavorably without a recommendation, or ask for further hearings. If the committee does not send the nomination to a full floor vote, the Senate may bring it to the floor.

Since the Cabinet’s inception, only nine Cabinet nominees have been rejected by a full floor vote.

The Recess Appointment

There have also been reports and opinions about the use of what is called a “Recess Appointment.” Article II of the Constitution gives us some hints in Clause 3: “The President shall have power 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.”

Unfortunately for us, the framers did not give further insight into this provision; but if we refer back to our Founding Fathers, we find Alexander Hamilton (and subsequent Attorneys General) have given us more guidance: the clause has “provided for an alternative method of appointment … to allow the filling of vacancies ‘without delay’ during periods of Senate absence.”

Since that time, legal scholars have attempted to define the meaning of keywords, such as: “vacancy,” “Congressional session,” and “recess.”

A recess is simply a break in House and Senate proceedings. There are two types of recesses: an intersession recess, longer in length, which is the period between the second session of one Congress and the first session of the following Congress: and an intrasession recess, which is typically a brief five to 11-day break from normal proceedings, i.e. during holidays.

During the nation’s early history, Congress would take months-long breaks from Washington, and presidents could use recess appointments to avoid having an important job go unfilled. However, more recently, recess appointments have been used to avoid a fight or rejection from an opposing Senate.

President Bill Clinton made 139 recess appointments and President George W. Bush made 171, though neither used the process for top-level cabinet positions.

President Barack Obama tried to continue the practice, using it 32 times; however, four of those appointments were challenged and the Supreme Court placed additional restrictions on recess appointments, the most relevant one being that both houses of Congress must recess for at least 10 days to qualify.

Imagine having to bring 15 Cabinet members on board, as well as White House staff, within the period of time between the election and the Presidential Inauguration. How things have changed since Washington’s first four Cabinet nominees!

As this sprint takes place and we follow along with the President-elect’s nominees and the actions of the Senate, we can do so knowing what to look for each step of the way.

Debbie Wuthnow is the president of iVoterGuide, a division of AFA Action, and a member of the Board of Directors of AFA Action. 

READ MORE:

Biden Picked His Cabinet Based on DEI. How Did That Work Out for Him?

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