Washington — President-elect Donald Trump’s selection of former Rep. Matt Gaetz to be attorney general is his most controversial Cabinet pick yet, and the Florida Republican is likely to face obstacles in the confirmation process.
But Trump is seeking an important change to the Senate confirmation process that would allow him to install some officials and sidestep lengthy hearings and a floor vote, in which nominees need a majority vote to be confirmed.
Before Senate Republicans elected their leaders for the 119th Congress, Trump demanded that the candidates agree to recess appointments, which would give him the option of bypassing the Senate’s role of approving or rejecting the president’s nominations. Trump argued that without the ability to temporarily install nominees he would not be able to fill the positions in a timely manner.
The legal basis for recess appointments emanates from a constitutional clause that gives the president “the power to fill up all vacancies that may happen during the recess of the Senate.” A Supreme Court ruling in 2014 concluded that recess appointments could only be made when the Senate is not in session for 10 or more days, after President Barack Obama made controversial appointments when senators were on break.
Senators often leave Washington for long stretches of time, but have utilized pro forma sessions to prevent presidents from installing nominees without their consent.
“In recent years, the Senate — regardless of which party controlled it — has used pro forma sessions to ensure that it is never in recess for more than three days,” said Josh Chafetz, a law and politics professor at Georgetown University.
For Trump to make recess appointments, the Senate would have to agree, through a simple majority vote, to go on recess for at least 10 days. The House must also agree to allow the Senate to adjourn, but Chavetz says if the House does not agree, or if it disagrees with the Senate on the length of adjournment, then the president has the constitutional power to adjourn both chambers for a timeframe of his choosing.
“That second route has never been used before in U.S. history, so no one is quite sure how it would work,” Chafetz said.
A recess appointment, however, does not have the same benefits as a nominee confirmed by the Senate. Without Senate approval, the appointee would not be paid. The appointee can serve in the role for up to two years, depending on when the appointment was made. After that, the individual could be installed again through a recess appointment or the regular confirmation process.
Some senators, including Republicans who will be in the majority come January, showed little appetite for giving up their constitutional power, especially after Trump announced that he intended to nominate Gaetz to lead the Justice Department.
“I was shocked,” Republican Sen. Susan Collins of Maine said Wednesday. “If the president proceeds with that nominee, I think it shows the importance of having the Senate advice and consent process.”
Gaetz resigned from Congress on Wednesday after Trump announced his selection. The timing came days before a House panel was set to vote on releasing a report on whether Gaetz engaged in sexual misconduct. Gaetz was also the subject of a previous Justice Department investigation that sought to determine if Gaetz violated sex trafficking and obstruction of justice laws. No charges were filed, and Gaetz has denied any wrongdoing.
“We have a process around here for considering presidential nominees,” Republican Sen. John Cornyn of Texas said Thursday when asked by reporters about Gaetz. “That’s a constitutional responsibility of the Senate, and I intend to play my part as a member of the Judiciary Committee in doing that vetting and advice and consent.”
“I don’t think we should be circumventing the Senate’s responsibilities, but I think it’s premature to be talking about recess appointments,” Cornyn added.
The Senate Judiciary Committee is responsible for conducting confirmation hearings for the attorney general nominee. Several other Judiciary Committee members also weighed in Thursday.
“The bottom line is our responsibility in the Senate is advice and consent,” said Democratic Sen. Dick Durbin of Illinois, the committee chairman.
Republican Sen. Thom Tillis of North Carolina said recess appointments should be used “judiciously,” adding that he has concerns about “blanket recess appointments.”
Democratic Sen. Richard Blumenthal of Connecticut said he could name between “five to 10 Republicans who are seriously considering voting against” Gaetz “and insisting that there will be a vote.”
Republican Sen. Josh Hawley of Missouri indicated he would not have an issue if Trump made recess appointments, saying the president “has total authority to make recess appointments.”
Democratic Sen. Chris Coons of Delaware urged his Republican colleagues to protect their role in confirmations and encourage Trump to pick confirmable candidates.