Some Capitol Hill Republicans are already starting to deliberate whether President-elect Trump has a constitutional pathway to adjourn Congress himself in order to clear any possible resistance to his Cabinet appointments.
Trump argued earlier this month in a post on Truth Social that “recess appointments” would enable his new administration “to get people confirmed in a timely manner.”
The Constitution grants the president authority to appoint Cabinet officials when the Senate is out of session, a period of time known as “recess,” bypassing the traditional Senate confirmation process.
Trump allies are exploring whether a constitutional clause would enable House Speaker Mike Johnson, R-La., to work with Trump to shut down Congress even if the Senate objects – clearing the way for his recess appointments.
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Some Republican legal circles are evaluating whether President-elect Trump and Speaker Mike Johnson can work together to force the Senate into recess. (Andrew Harnik/Getty Images)
The passage in question would allow the commander in chief to “on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper.”
If Johnson proposes to take the House and Senate out of session and the Senate resists, then there is “disagreement,” the theory goes, and Trump could send everyone home for as long as he wants.
“We’re still looking at that,” Rep. Chip Roy, R-Texas, chair of the House Judiciary Committee’s subcommittee on the Constitution and Limited Government, told Fox News Digital. “I’m actually talking to a bunch of folks who have been a part of litigating this in the past… reviewing it to kind of figure out the history and the contours of that particular provision, because that’s kind of in the zip code of unprecedented.”
He said there was “zero question that the House and Senate can choose to adjourn,” at which point Trump could make his recess appointments.
“We just kind of gotta work through what is the position of the House and the Senate on adjourning and then figure out… that specific question,” Roy said.
Rep. Matt Rosendale, R-Mont., told Fox News Digital, “I have heard that there were some discussions about that, whether it is already currently allowed or procedurally correct, but not that much.”
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Rep. Chip Roy said the question was being evaluated but is “unprecedented.” (Kevin Dietsch/Getty Images)
“I think basically, what we’re really, really talking about is, should the president be able to have the people confirmed that he has selected to help him pursue and pass his agenda?” Rosendale said.
“I think that he should be allowed to have the people confirmed that are going to help him pass his agenda… I do also believe that we have to be very careful of breaking norms, because we saw [ex-Speaker Nancy Pelosi, D-Calif.] do that on many occasions, and it does hurt the institutions.”
There’s currently disagreement among legal experts over whether the move is even possible.
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“The whole idea that a president could conspire with the House to eviscerate the Senate’s advice and consent for a nomination is outrageous,” Edward Whelan, a distinguished senior fellow of the Ethics and Public Policy Center, told Fox News Digital.
“The mechanism that they have in mind to do that would not work. … The House of Representatives has no authority to try to prevent the Senate from staying in session. And its objection to the Senate doing so cannot plausibly create the sort of disagreement that would trigger a presidential authority to adjourn both houses.”
The nomination of former Rep. Matt Gaetz for attorney general has caused some heartburn within the GOP. (Mario Tama/Getty Images)
Mike Davis, founder of the Article III Project and a former senior aide to the Senate Judiciary Committee, told Fox News Digital he believed the clause was there specifically for such a time.
“The Senate’s job is to provide advice and consent. The American people overwhelmingly elected President Trump in a landslide victory. The American people expect the Senate to confirm all of President Trump’s qualified nominees,” Davis said.
“If the Senate refuses to do that, the Constitution provides a mechanism for the president and the executive brand to [sidestep] them.”
The idea has struck some within the House GOP as preposterous – particularly in relation to former Rep. Matt Gaetz’s nomination by Trump for attorney general.
“The speaker should not do that. And my hope is that the Senate president will have more of a backbone,” one Republican lawmaker told Fox News Digital when granted anonymity to speak freely.
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“If he wanted recess appointments, nominating Matt Gaetz was the worst thing he possibly could have done… when you throw him in there, you just kill it easily because you just scared the crap out of, I don’t know, probably 30 or 40 Republican senators.”
But Trump ally Rep. Marjorie Taylor Greene, R-Ga., who told Fox News Digital she’s heard “multiple strategies” for helping the president-elect get recess appointments through, said, “Yes, we’re going to get the appointments done,” even if Senate Republicans don’t fully comply.
Rep. Marjorie Taylor Greene signaled she would support Johnson working with Trump to bypass the Senate if necessary. (Kevin Dietsch/Getty Images)
“I’ll just tell you this. If these senators oppose President Trump’s appointments, they are openly declaring war on President Trump and his incoming administration,” Greene said. “They need to sit down and get out of the way, because it’s not going to be tolerated.”
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Johnson himself appeared to leave the door open to such a strategy during an interview with “Fox News Sunday” when asked about the constitutional theory.
“I wish the Senate would simply do its job of advice and consent and allow the president to put the persons in his Cabinet of his choosing. But if this thing bogs down, it would be a great detriment to the country, to the American people,” Johnson said.
“They have sent the message that America First policies should be the rule of the day… So we’ll evaluate all that at the appropriate time and we’ll make the appropriate decision. There may be a function for that, and we’ll have to see how it plays out.”
When reached for comment, Johnson’s office referred Fox News Digital to his Sunday show appearance and pointed out comments from earlier on Tuesday in which he said, “I think it’s an important principle for us to maintain that an incoming president gets to select their own team. I think, I think that’s an important principle. The advise and consent responsibility is given to the Senate and the Constitution. They need to take that seriously, and they will. They’ll properly vet nominees, and that process will play out. But look, I’ll just say this about a number of the nominees that have been appointed — I think President Trump is looking for persons who will shake up the status quo, and we got a mandate in this election cycle to do that the status quo is not working for the American people.”