Republican senators are pouring cold water on the idea that President-elect Trump could force the Senate into an extended recess next year so he would be able to fill key positions in his Cabinet without going through the upper chamber’s confirmation process.
Republican senators and aides say Trump allies who claim the incoming president would have power under Article 2, Section 3 of the Constitution to force an extended recess don’t understand how Congress really works.
And they warn that Trump would trample on the Constitution’s separation of powers if he tries to force the Senate to take a recess of 10 days or longer to get around the chamber’s responsibility to provide “advice and consent” on executive branch nominees.
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Sen. John Cornyn (R-Texas), a senior member of the Judiciary Committee, said he doesn’t think the Constitution’s Article 2 gives a president the authority to force the Senate — or the House, for that matter — to take a recess.
“I don’t think so,” he said. “The separations of powers doctrine is pretty fundamental: three coequal branches of government. One branch can’t commandeer the other two. I think that would be the outcome.”
Several of Trump’s Cabinet picks are facing potentially strong opposition from Senate Republicans, even after former Rep. Matt Gaetz (R-Fla.) withdrew his name from consideration to serve as attorney general Thursday, after several GOP senators raised concerns about allegations against him of sexual misconduct and illicit drug use.
Sen. Mike Rounds (R-S.D.), a close ally of incoming Senate Majority Leader John Thune (R-S.D.), says it would be “extremely difficult” for Trump to force the Senate into a long recess.
“I think you would have to have a majority in the Senate that would agree to that,” he said of any effort to recess the Senate for more than 10 days.
“I think it would be extremely difficult to get done,” he added.
Putting the Senate into a recess lasting 10 days or longer has become a hot topic of conversation on Capitol Hill because the Supreme Court ruled in 2014 that’s how long a recess would have to last to enable a president to make emergency appointments without having to go through the Senate confirmation process.
Rounds thinks Trump allies are floating the threat to gain leverage with senators who might be tempted to oppose some of his controversial Cabinet picks, such as Robert F. Kennedy Jr. to serve as secretary of Health and Human Services or former Rep. Tulsi Gabbard (Hawaii) to serve as director of national intelligence.
Rounds warned that any effort to force the Senate into a recess to circumvent the confirmation process would be counterproductive in the long run, because Democrats, who will be in the minority next year, would retaliate by slowing routine business on the Senate floor to a crawl.
Conservative senators flexed their power to disrupt Senate business Monday when they forced Senate Majority Leader Chuck Schumer (D-N.Y.) to hold time-consuming votes every time he wanted to switch between legislative and executive sessions to schedule votes on judicial nominees.
A piece of housekeeping that usually takes only a few minutes wound up requiring about six hours and 18 votes to accomplish.
“What is concerning me right now is what we saw … in the Senate where we slowed things down because of the lack of communication by the Democrat leader in terms of his plans to introduce all of theses judges this week. That’s the kind of thing that can cause real problems for the next administration to get their nominees through,” he said.
Sen. James Lankford (R-Okla.) said the threat of forcing the Senate into a long recess to enable a president to make emergency appointments is “always kind of hung out there as a possibility.”
But he said, “I don’t anticipate the Supreme Court would sustain that.”
The Constitution’s separation of powers doctrine holds that the powers of government are split among the executive branch, the legislative branch and the judicial branch, with each branch checking and balancing the power of the other two.
Under the theory advanced by some Trump allies, the incoming president could claim constitutional authority to force the Senate into an extended recess if he can convince Speaker Mike Johnson (R-La.), or whoever is the Speaker in 2025, to provoke a disagreement between the two chambers over how long the Senate should recess.
Article 2, Section 3 states that “in Case of Disagreement between” the Senate and House “with Respect to the Time of Adjournment,” the president “may adjourn them to such Time as he shall think proper.”
Some Trump allies think that means, if the House passes a concurrent resolution calling for Congress to take an extended recess and the Senate doesn’t agree with it, Trump could step in and declare a recess.
One Senate Republican who requested anonymity to dismiss the likelihood that Trump could force a recess said Johnson, or any other Republican leader of the House, would be leery to go along with a plan to force the Senate into a recess, knowing the bad blood it would create with fellow Republicans on the other side of the Capitol.
“It would have to really devolve into a pretty massive inter-Republican disagreement for that to happen. I think we’re better off to stay on the same page, better off to get everybody confirmed quickly,” the senator said.
The senator warned “it wouldn’t be good” if House Republicans teamed up with Trump to override the Senate’s advice and consent duties.
Some Senate Republican aides and parliamentary experts say that if the Senate simply fails to approve the concurrent resolution passed by the House to go into recess, it would not rise to a level of a disagreement sufficient to warrant presidential action.
These aides say Senate inaction on a House-passed measure by itself doesn’t rise to the level of a disagreement. Instead, the Senate would have to pass its own recess resolution that conflicts with the House and then take formal action on the floor acknowledging a disagreement exists.
James Wallner, a former Senate GOP aide and Senate parliamentary expert, noted the Senate has to formally disagree with the House over legislation in order to proceed to a legislative conference. Simply not acting on House-passed legislation is not enough to proceed to a conference.
“How does the Senate go to conference on a bill? It has to be in a state of disagreement. What does that entail? The Senate can’t just do nothing. It has to disagree,” Wallner wrote on social media.
“What does the Senate think? It is a body of 100 people. That means it has to take action to decide what those people think. Not taking action is not disagreement,” he continued.
Trump demanded shortly after winning the election that the next Senate majority leader give him the power to make recess appointments.
“Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner,” Trump wrote Nov. 10 on social media.
The three Republicans vying to become majority leader — Thune, who is the current Senate Republican Whip, and Sens. John Cornyn (Texas) and Rick Scott (Fla.) — agreed immediately to do whatever they could to speed Trump’s nominees through the Senate.
But Thune, who eventually won the job by a vote of the Senate Republican Conference, later warned that putting the Senate into a long recess to allow the president to make emergency appointments wouldn’t be easy.
“It’s an option,” he said of the prospect of closing down the Senate for 10 days or longer.
But he warned that Republican senators who oppose some of Trump’s nominees would not likely vote for a prolonged recess.
“You have to have all Republicans vote to recess, as well. So the same Republicans … that might have a problem voting for somebody under regular order, probably also has a problem voting to put the Senate in the recess,” Thune told Fox News’s “Special Report with Bret Baier.”
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