Former Harry Reid staffer Adam Jentleson gave a rundown on Xitter:
A quick thread on what seems to be Trump’s plan to obliterate the Senate’s advise and consent responsibility so that he can recess appoint his cabinet, or at least those members who lack the votes to get confirmed by the Senate.
Remember that only the Senate confirms nominees and judges. The House has no role in the confirmation process itself.
The Constitution allows POTUS to make recess appointments, ie to put nominees in place without Senate confirmation. In the past this has been used sparingly.
For recess appointments to happen, the Senate has to be in recess. For a decade or so, the Senate has not been going into recess when it adjourns but pro forma sessions, which can last up to 3 days. Long story, it goes back to Rs blocking Obama from doing recess appointments.
Gonna try to avoid the weeds here, but the fact that Senate has been going into pro forma sessions is why you have the odd spectacle of senators gaveling the Senate in and out of session every three days during longer “recesses” like holiday breaks. ANYWAY…
To recess, the Senate needs to pass an adjournment resolution, which is and has always been a majority-rule vote (because nearly everything in the Senate used to be majority-rule until relatively recently). The House has to approve the Senate’s adjournment res, and vice-versa.
The Constitution gives POTUS the authority to adjourn both the House and Senate “in case of disagreement between them” about when to adjourn and for how long. Here’s Article II, Section 3.
In theory – and I think this is Trump’s – he could adjourn the Senate even if it did not want to adjourn. The House passes an adjournment resolution, sends it to the Senate and the Senate rejects it, thus setting up the “disagreement” that triggers POTUS adjournment authority.
At this point, the Senate would be in a formal recess and Trump could theoretically appoint as many officials as he wants. It wouldn’t matter if his nominees have the votes to be confirmed by the Senate because Trump would have taken the Senate out of the process entirely.
While the process is a little convoluted, the precedent is not: Trump wants to end the Senate’s advise and consent role in presidential nominations. Period, end of story.
On the politics, it doesn’t seem like Trump is nominating Gaetz and Gabbard as a bankshot play where he sacrifices them to get Hegseth. I think he really wants Gaetz and Gabbard, and will do whatever it takes to get them.
Some folks are rightly pointing out that while the adjournment resolution is a majority-rule vote on passage, it is amendable, which means Democrats could try to filibuster it by offering endless amendments – but i don’t think that changes the outcome for a few reasons.
Think of this as replicating the Senate from 1917 to the early 2000s when cloture was available but rarely used.
The opposition could delay but whenever they tired the business at hand would come up for a majority-rule vote.
This would be a talking filibuster, basically.
So problem #1 is the standard limitation on the talking filibuster – if Dems ever ran out of energy to hold the floor and offer amendments, the adjournment resolution would could up for a majority-rule vote.
Problem #2 is that at any point, Republicans could change the rules and to limit amendments, speeches etc., via a majority-rule vote. Even if they didn’t have the votes initially, it’s easy to see how they would get them after a prolonged delay, under pressure from Trump.
Problem #3 – and I want to caveat this because I’m not a constitutional scholar – is that under Trump’s theory it is not clear the Senate has to pass an adjournment resolution at all, since the POTUS adjournment power kicks in in case of a disagreement between the chambers.
This is for the courts to decide, but under Trump’s theory, the House passes an adjournment resolution and if the Senate doesn’t, that constitutes “disagreement.” Who knows if that holds up in court but if things go this way I bet Trump will test it.
If I had to guess I think that under this threat the Senate will simply confirm all of Trump’s nominations quickly and without any controversy. They will be afraid that if he adjourns the Senate to do this thing that he will not call it back into session for any reason except maybe passing a budget which he will write and for which he will expect full approval. As long as Trump has Johnson there ready and willing to create the “disagreement” he can simply make congress irrelevant. The acquiescent House Speaker makes that all possible under the Constitution. I can’t imagine this SCOTUS saying otherwise.
So, l look for Gaetz and Hegseth and Gabbard to be easily confirmed and watch as the Democratic voters who will understandably fail to understand the arcane dynamic I just described, get more and more disillusioned with the Democratic party and withdraw even further from politics.
Neat trick. The only thing that could stop it is if Johnson refuses or the Senate Republican majority rebels. Neither of those things are remotely likely.