President-elect Trump is calling on Senate Republicans to support his agenda or get out of the way, going so far as to call for recess appointments of his recently announced cabinet picks. Trump has stated that he wants his cabinet – including unconventional nominees like Robert F. Kennedy Jr., Pete Hegseth, and Tulsi Gabbard – in place soon after his inauguration, even if that means the Senate does not vote on these picks as they typically do.
To achieve his goal of getting straight to work, Trump is pushing the Senate to step aside instead of allowing senators’ concerns with some of his nominees to delay—or jeopardize—their confirmation. If senators acquiesce to Trump’s demands, they would be allowing Trump to install his cabinet picks unilaterally. Some observers worry that Trump may even forcibly adjourn the Senate to advance his nominees even if senators refuse to go along with his plan.
This has prompted many to ask: What are these recess appointments? And can Trump use them to skirt the Constitution’s advise and consent process in which senators approve or disapprove of presidential cabinet picks?
The fact is that procedural maneuvering can only get Trump the cabinet he wants if senators are on board with his picks and refuse to get out of the way so he can proceed without them. In short, Trump needs the Senate to approve his nominees, one way or the other. He needs senators to confirm his picks, or he needs them to adjourn long enough to install them. However, Trump cannot force the Senate to do something it doesn’t want.
The Constitution stipulates how the confirmation process works. Its Appointments Clause empowers the president to nominate individuals to serve in the federal government. It also requires the Senate to approve the president’s nominees before they can be officially appointed. The Constitution’s Recess Appointments Clause empowers the president to appoint individuals to serve in office for a limited period.
However, the president can only use that power when the Senate is not in session and cannot approve or reject the president’s nominees. The time constraints associated with recess appointments ensure the government has the people it needs to function without undermining the Senate’s role in the confirmation process.
The Constitution also determines what must happen before the president can make recess appointments. Its Rules of Proceedings Clause empowers the House and Senate to determine how their members make decisions, including how to adjourn (or recess). Both chambers presently require a simple majority of their members to adjourn.
The Constitution limits how the House and Senate adjourn by requiring both chambers to agree to adjourn for more than three days. On “extraordinary Occasions” when the House and Senate cannot agree “with Respect to the Time of Adjournment,” the Constitution empowers the president to adjourn Congress.
Even with these constitutional provisions, recess appointments are not the key to Trump getting his cabinet in place. This is because Trump only needs to make recess appointments if a majority of the Senate is willing to go along with his plan to go into recess. It only takes a majority of the Senate to confirm Trump’s nominees in the first place. Nominees confirmed by the Senate via the regular confirmation process are preferable to recess appointments because their ability to serve in office does not expire at a specific time.
Relying on recess appointments could even delay the new administration’s work, given the time that must elapse before the president can use them. The Supreme Court ruled in 2014 that the Senate must be out of session for at least ten days before the president can make recess appointments, yet Republicans can review Trump’s picks now and use their majority to expedite the confirmation process in January. Democrats can’t even filibuster Trump’s nominees after they used the “nuclear option” to eliminate the filibuster for all executive branch nominations in 2013.
And Trump cannot forcibly adjourn Congress if Republicans – or a majority of the Senate – oppose his nominees and are unwilling to adjourn so he can install them unilaterally. The president’s constitutional power applies “in Case of Disagreement” between the House and Senate regarding how long to adjourn. A Senate majority must act proactively to be in a state of disagreement with the House.
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For that to happen in this case, a majority of senators would have to first agree to debate a House-passed adjournment resolution, then decide to change it, and then agree to send the amended resolution back to the House. Even then, the two chambers would be in a state of disagreement only after the House agreed to consider the amended adjournment resolution and voted to reject the Senate’s changes.
A Senate majority can prevent the two chambers from reaching a state of disagreement simply by voting not to consider a House-passed adjournment resolution or to table it after agreeing to debate it.
Ultimately, the Senate must take action to agree with Trump’s picks, one way or another. There is no way around it, all procedural maneuvering aside.
James Wallner is a senior fellow at the R Street Institute and former executive director of the Senate Steering Committee