Trump may start his second term with a stunning power grab

With President-elect Donald Trump’s latest slate of extreme or controversial nominees — Rep. Matt Gaetz for attorney general, former Rep. Tulsi Gabbard for director of national intelligence, Pete Hegseth for secretary of defense, Robert F. Kennedy Jr. for Health and Human Services secretary — has come the question about whether even a Republican-controlled Senate will actually confirm them all.

But what if that’s asking the wrong question? What if Trump has no intention of asking the Senate’s permission?

Throughout the transition, Trump has made several references to his intent to use “recess appointments” to get his appointees in place more quickly. This refers to a longstanding presidential power to fill jobs that typically require Senate confirmation if Congress is in recess. The Constitution included that power in an era when reconvening a recessed Congress would take months of travel time; more recently, presidents have used it to get around Senate opposition for certain picks.

Yet Trump’s references to recess appointments were vague, and it was unclear exactly why he sounded so insistent on them. The new Congress would not need to recess for some time. The Senate surely would consider his top nominees quickly. The new Republican majority would likely be deferential to most of his choices, and the Democratic minority has no power to actually block any of them. So why would recess appointments be necessary so soon?

We got a potential clue about what Trump may have in mind when the well-connected conservative legal activist Ed Whelan heard a rumor.

“Hope it’s wrong,” Whelan wrote on X Wednesday, “but I’m hearing through the grapevine about this bonkers plan: Trump would adjourn both Houses of Congress under Article II, section 3, and then recess-appoint his Cabinet.” 

This may sound technical, but it would amount to a massive power grab: Trump would be forcing the Senate into a recess. This would mean that, for many of the most important posts in the federal government, Trump could simply ignore the Senate, thumbing his nose at the body to impose everyone he wanted, no matter how corrupt, extreme, or controversial they are.

Moreover, it would mean Trump would be choosing to crash headlong into one of the biggest guardrails constraining the president’s authority: the Senate’s confirmation powers. If Trump were to try this and get away with it, Senate confirmation powers would effectively no longer exist.

Currently, this remains in the rumor stage, and if it is truly something being considered by Trump, it remains unclear whether he’d go through with it. But it makes a lot of sense. It may reflect the influence of Elon Musk and the Silicon Valley right in Trump’s camp — it’s a risky, norm-shattering attempt to disrupt the way politics, governance, and presidential power work. (Musk has indeed been tweeting about recess appointments.) 

It would mean starting off Trump’s term with a high-stakes showdown and certain litigation — with no one certain about exactly how things would play out.

Why this recess appointment plot would be different than past recess appointment controversies

Recess appointments have been the subject of political and legal controversy in the past.

In 2012, President Barack Obama was frustrated at the Republican Senate minority’s constant filibusters of many of his key nominations. (At the time, 60 votes were needed to get nominees past a filibuster; rule changes have since lowered that threshold to a simple majority.) He wanted to use recess appointments to fill some posts, but Republicans were blocking the Senate from going into recess at all. Even though nearly everyone left town, they continued to hold “pro forma” sessions where nothing actually happened.

So Obama decided to just do recess appointments anyway, filling three National Labor Relations Board seats and the directorship of the newly-created Consumer Financial Protection Bureau. The administration argued that the pro forma sessions were fake and Congress was actually in recess; therefore, Obama could do recess appointments. But the Supreme Court unanimously rejected his argument, saying it was up to Congress to determine whether it was in recess.

Trump’s plan would be far more brazen.

The Constitution states that during a congressional session, both chambers of Congress must consent if they want to adjourn Congress for more than three days. But it also says that “in Case of Disagreement between them, with Respect to the Time of Adjournment,” the president “may adjourn them to such Time as he shall think proper.”

In layperson’s terms, that would seem to say that if the House and Senate disagree on when to adjourn, the president can force them to do so. This power has never been used by the president.

But according to Whelan’s sources in the conservative legal movement, this is the plan Trump’s team is putting together. First, Trump would get the House of Representatives under Speaker Mike Johnson to propose adjourning Congress. Then, if the Senate refused to do so, President Trump would step in, saying that because the two chambers disagreed, he’d use his power to force the Senate to adjourn. He would then make recess appointments to his heart’s content.

Such appointments would then inevitably be challenged in court, and the Supreme Court would eventually determine whether they were legal.

Whelan has gone public because he’s appalled by this idea. “It’s a fundamental general feature of our system of separated powers that the president shall submit his nominations for major offices to the Senate for approval,” he wrote in National Review. “That feature plays a vital role in helping to ensure that the president makes quality picks.”

If Trump pulled this off, it would be an utter humiliation for incoming Senate Majority Leader John Thune and Republican senators generally — it basically would be taking a wrecking ball to the power of the Senate. 

The scheme would also require, as Whelan points out, the cooperation of Speaker Johnson and his House majority. But it is far from clear whether Republicans in either chamber — or the courts — have the inclination or the spine to stand up to an unprecedented power grab by Trump. And the rumors of it bode ill for other Trumpian abuses of power that will surely lie ahead.