As GOP Senators Choose Their Leader, Trump Demands They Bend the Knee

The advent of a second Trump administration, helmed by a now more experienced and even more retributive Donald J. Trump, is about to put Congress and the federal judiciary through stress tests more dangerous than any our system of government has endured since the Civil War. The interplay of Congress, the executive, and the judiciary—each mindful of its duties and prerogatives—was intended to yield a liberty-protective system of checks and balances to counteract tyranny. In the words of James Madison, the 1787 constitutional design was organized with the aim of “so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.”

Trump couldn’t care less. His first challenge to Congress—precisely, to the Senate—is blunt: Butt out of the appointments process. He wants the Senate to recess long enough as soon as it takes office so that he can avail himself of the president’s so-called recess appointments power, which both Democratic and Republican Senates have tried to put to rest over the last decade. It is troublesome that none of the leading candidates for Senate Majority Leader has condemned the idea.

Article II authorizes the president to “nominate, and by and with the advice and consent of the Senate [to] appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States.” Senate advice and consent is thus constitutionally mandated. There is an exception for so-called “inferior officers”—an assistant attorney general, for example—as to whom Congress may give appointing authority to the president alone, department heads, or the courts. Congress often takes advantage of that discretion, allowing many inferior officers to take office without Senate involvement. However, for federal judges and principal officers, such as cabinet secretaries and the voting members of independent administrative commissions such as the Federal Trade Commission or the National Labor Relations Board, the rule is clear: the Senate must participate.

In 1787, however, the Framers did anticipate a Congress—and thus, a Senate—potentially to be away from the nation’s capital for as many months as it would be present. The government would still have to function even when Congress had adjourned and its members returned to their farms, shops, and other walks of life. Realizing the problem, the Framers gave the president a “recess appointment power,” that is, “power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” Such a power was necessary when the Senate was closed for prolonged stretches. The power is glaringly anachronistic, however, with a Congress for which the exercise of legislative power has become a full-time job.

The recess appointment power, however, is still in the Constitution. Thus, if the Senate were to “recess” long enough in January 2025, Trump could put in place his entire cabinet without Senate participation. L’état, c’est moi.

He could give sycophants commissions that would last through Congress’s 2026 session. For nearly two years, government could operate under administrative leaders for whom there had been no Senate background checks, no hearings, and no serious public debate. Indeed, with a big enough database—and the Project 2025 folks claim to have one—Trump could immediately fill the roughly 1300 positions for which the Constitution or federal statutes now require Senate review.

The one possible check on Trump’s abuse of his recess appointment power is keeping the Senate technically in session to avoid a constitutionally pertinent recess. The Obama administration and a Republican-controlled Senate engaged during 2011 and 2012 in a procedurally complicated dispute over appointments to the National Labor Relations Board. That dispute culminated in an important Supreme Court decision, NLRB v. Noel Canning. Noel Canning effectively informed the Senate that it could prevent any use of the recess appointments power by shortening periods of adjournment, even if all but ceremonially. Based on the history of government practice, the Court concluded that a “recess” of the Senate is adequate to trigger the President’s unilateral appointments power only if it lasts at least ten days. Obama’s recess appointments, having occurred during a three-day period of Senate adjournment, were invalidated by the Court.

Happily for Senators, avoiding an extended recess and thus checking unilateral presidential action does not require most Senators to show up for work. During the second George W. Bush administration, when the Democrats regained control of the Senate in 2007, they began conducting so-called “pro forma sessions” every three days during periods of adjournment that occurred within sessions of Congress. (A “session” of Congress is the period from each House’s first call to order in January of every year until its final adjournment, which usually comes in the following December.) Breaking extended periods of adjournment into three-day chunks prevented the Senate from being in recess long enough to permit Bush to use his recess appointments power. Pro forma sessions typically last only a few minutes, if that, during which the only business conducted—often by a single senator—is to a call an empty room to order and adjourn until the next pro forma session. Yet the Supreme Court held that these pro forma sessions sufficed to stymie the president: “For purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.” The Senate met that standard in Noel Canning; the Republican Senate’s pro forma sessions meant they were never technically in recess for ten days.

Because of Noel Canning, a party out of the White House but controlling at least one chamber of Congress can make sure that the Senate never recesses for ten days. If the opposition party controls the Senate, they can do what the late Senator Harry Reid did to George W. Bush. But even if the opposition controls only the House, it can prevent ten-day recesses. Article I provides—in a paragraph typically known chiefly to participants in constitutional law trivia contests: “Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days.” Using the power of withholding consent, when Republicans controlled the House during Obama’s second term, they formally forbade the Democratic-controlled Senate to adjourn for more than three days at a time. Hence, there are no more Obama recess appointments, and there have not been any under Biden.

Somewhat surprisingly, however, and in a truly Madisonian spirit, when Republicans controlled both chambers during the first Trump Administration, the Senate continued to use pro forma sessions to retain leverage over the nomination and confirmation process. Then-Majority Leader Mitch McConnell, presumably aware that Congress was not intended to be the president’s humble servant, wanted to maintain the Senate’s role of advice and consent to important offices. After all, as Alexander Hamilton explained, the Framers gave the Senate a pivotal role in the appointments process as a critical check on incompetence and corruption: “[The Senate] would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”

Keeping this check in place will not keep Trump from being Trump. Confirmation votes in the Senate are not subject to filibuster; with 52 or 53 Republican Senators in the next Congress, Trump will surely get nearly all appointees through, making it yet more alarming that he’s demanding still more of his Republican Senate allies. Moreover, during his first administration, Trump learned how to use statutory authority to make temporary appointments—sometimes highly controversial—when he thought the matter was urgent. Avoiding recess appointments will, however, operate as a safeguard against potentially egregious nominations and serve as a constitutionally significant reminder that Congress is a co-equal branch of government with the executive.

To keep this check in place—at least if the President’s party controls both Houses of Congress, as looks likely—requires the Senate to be as faithful to its constitutional role as it is to the President’s agenda. Again, to quote the prescient Madison: “The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” “Ambition,” he explained, “must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” Let us hope Republican Senators are unwilling to cede any of the chamber’s rights because this is unlikely to be the last time Trump makes such an audacious request.

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