The Situation: Gaetz and Gabbard, Adjournment and Recess

The Situation yesterday found me ruminating on Lawfare’s role over the next few years.

Pete Hegseth as secretary of defense was not on my bingo card.

Tulsi Gabbard as director of national intelligence was really not on my bingo card. 

Matt Gaetz as attorney general was most emphatically not on my bingo card. 

And not on my bingo card either was a scheme to breathe life into a never-before-invoked provision of the Constitution by way of installing these disastrous nominees by recess appointment.

The nominees themselves should not have surprised me. They all typify certain classes of people who seem to wander in off the street and surround the president-elect. Hegseth represents Trump’s inability to distinguish people who talk about things on television from people who actually do those things and know about them. Gabbard represents the weird attraction to Trump among folks on the left and right—and the weird spaces where the two meet—who identify with America’s enemies and who mysteriously all seem to spout Russian propaganda. And Gaetz represents the Jacobin wing of the Republican party—the people who at once accuse their political foes of weaponizing the justice system against them and openly aspire to weaponize it against their foes. 

All three are all dramatically underqualified for positions not merely of honor and trust but of enormous coercive power. And the choice of all of these nominees are all conscious or subconscious efforts on Trump’s part to troll the agencies they have been named to lead. 

But there’s no point in talking about the individual qualities of the specific individuals in question unless and until it is clear that the Senate will actually take up their nominations. 

Because right now, there is an antecedent issue: ensuring that the Senate does, in fact, have an opportunity to vote on these and other cabinet nominations at all. 

In the run-up to these announcements, Trump demanded of would-be Senate majority leaders that they be willing to support his using recess appointments to install nominees. The president has the power to install officials (and judges) without Senate confirmation when Congress is in recess, though the appointments only last through the end of the Congress. The prevailing Republican senator, John Thune (R-SD), readily complied with Trump’s demand, saying, “We must act quickly and decisively to get the president’s nominees in place as soon as possible, & all options are on the table to make that happen, including recess appointments.”

Then, yesterday, conservative lawyer Ed Whelan—who served as a Republican Judiciary Committee staffer and advocates energetically for Republican judicial nominees—wrote in National Review that he was hearing of:

a crazy plan in which Donald Trump would exercise his authority under Article II, section 3 of the Constitution to adjourn both Houses of Congress so that he could recess-appoint his Cabinet officials. Trump’s stunning announcement that he intends to select Florida congressman Matt Gaetz as his Attorney General lends credence to this rumor, as it is extremely unlikely that the Senate would confirm Gaetz.

The scheme, as Whelan reports it, would work like this: 

The Constitution provides that “[n]either House [of Congress], during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” (Article I, Section 5, clause 4.) Article II, section 3 provides that “in Case of Disagreement between [the Houses], with Respect to the Time of Adjournment, [the president] may adjourn them to such Time as he shall think proper.”

Step 1: The House adopts a concurrent resolution that provides for the adjournment of both the House and the Senate. (The House rules expressly state that a concurrent resolution “may provide for the adjournment of … both Houses.”)

Step 2: The Senate either adopts the concurrent resolution, in which case it adjourns (jump to Step 4), or it rejects the concurrent resolution (proceed to Step 3).

Step 3: Trump adjourns both the House and the Senate for at least ten days (and perhaps for much longer).

Step 4: Trump recess-appoints his Cabinet officers.

The presidential adjournment power has never been invoked, and invoking it in this fashion would be a dramatic seizure of power from the Senate. In an oped in the Washington Post, Whelan urged that House Speaker “Mike Johnson should not be complicit in eviscerating the Senate’s advice-and-consent role. He should promptly make clear that the House will abide by its usual schedule of recesses and will not attempt to engineer a recess of the Senate.”

First off, I want to offer a hat tip to Whelan for blowing the whistle on this scheme. He is currently taking his lumps from MAGA-world for doing so. Speaking out about this took courage. And it makes a huge difference that this possibility has become public two months before it would be implemented—rather than as a shock-and-awe moment in late January. 

Whelan is also correct that the Speaker of the House has the cleanest route to shutting this idea down. Speaker Johnson could, as Whelan suggests, simply declare that it’s not going to happen—and that would be it. 

But there are other actors who have a part to play as well in making sure that this scheme does not neuter the Senate’s power to approve presidential appointees: Republican senators. 

It is one thing to say as a senator that in principle you support the president’s ability to use the recess appointment power, as Thune did. It is quite another thing to acquiesce to the engineering of a fake congressional recess in order to facilitate the president’s use of the recess appointment power by way of circumventing one’s own body’s constitutional authority. As Whelan describes the engineering in question, the Senate could not actually stop this from happening directly, since it requires only Speaker Johnson’s involvement. That means, paradoxically, that if Trump can do this, the scheme Whelan describes would enable any president to evade Senate confirmation for his cabinet for two years so long as his party controls the House of Representatives. 

That said, as a functional matter, Senate Republicans could stop it dead in its tracks merely by making clear that they are willing to defend their institutional prerogative and are willing to use their oversight and appropriations powers in an effort to do so. They could, for example, say that cabinet officials who have not gone through Senate confirmation or been appointed during a regular recess should not expect legislative cooperation on key matters. A few phone calls to this effect from a few committee chairs would make the scheme untenable, at least for an administration that wants to do anything. 

I have long since stopped expecting senators to put their country or their branch of government over party, and I’m not going to make a plea for that here. My days of such naivete are over.

I am going to say that what goes around comes around, and Republican senators should be at least a little bit careful about creating an infrastructure for a liberal president to install atop federal agencies left-wing activists specifically chosen to antagonize conservatives—and to do so without Senate approval. 

I suspect that several Republican senators may have anxieties about voting for Gaetz and Gabbard. Their first anxiety, however, needs to be about preserving the principle that they get to vote on them at all. 

The Situation continues tomorrow.