Could Trump bypass Congress if Senate Republicans don’t push through his Cabinet picks?
One of President-elect Donald Trump's first moves after winning another four years in the White House was to make a demand for "recess appointments."
It's now clear why.
His Cabinet picks of Fox News host Pete Hegseth for defense secretary and former congresswoman Tulsi Gabbard for director of national intelligence raised eyebrows and alarms. But his selection of now former GOP Rep. Matt Gaetz for attorney general prompted audible gasps from House Republicans huddled behind closed doors and later public bewilderment from some GOP senators.
ABC News Chief Washington Correspondent Jonathan Karl reports Trump will move full steam ahead, seeing the nominations as a critical test of loyalty for the new Republican leadership on Capitol Hill.
If that loyalty fails, Karl reports, Trump's team is eyeing a nuclear option to bypass Congress altogether: having lawmakers adjourn, or forcing them to adjourn, so he could install his picks without the "advise and consent" confirmation process in the Senate -- a key legislative power also called for in the Constitution.
It would be a maneuver in line with Trump's push for more unchecked executive power in his second term, something Karl calls part of his "dictator on Day 1" strategy.
"This kind of contrivance, I think, would be unprecedented," said Harry Litman, a former U.S. attorney and deputy assistant attorney general who teaches constitutional law.
Experts who spoke with ABC News could not recall a time when the Senate and House agreed to recess solely for the purpose of allowing a president to place controversial figures in powerful government positions.
Newly elected Senate Majority Leader John Thune, who will take control of the chamber in January, said Republicans were going to "explore all options" when asked by ABC News Senior Congressional Correspondent Rachel Scott if he would move forward with recess appointments.
Thune expressed a desire for the Senate to hold confirmation hearings, which could prove to be messy battles for people like Gaetz. Republican Sen. Kevin Cramer told ABC's Scott that Gaetz wouldn't be confirmed if the vote took place now.
Should a nominee face seemingly insurmountable headwinds, Trump could ask both chambers to recess in order to make the appointments himself. But what happens if the House and Senate don't see eye to eye on a recess?
Article II Section 3 of the Constitution provides for a president to adjourn Congress should there be a "case of disagreement."
The provision reads, in part: "On extraordinary Occasions ... in Case of Disagreement ... with respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper."
That's never been done before, said Josh Chafetz, a constitutional law professor at Georgetown University.
If Trump were to go that route, it would likely face legal challenges and potentially wind up before the Supreme Court.
In 2014, the Supreme Court weighed in on the issue of recess appointments after then-President Barack Obama used a short break in congressional business to place officials on the National Labor Relations Board.
The decision in NLRB v. Noel Canning ultimately gave the president power to fill vacancies in recesses greater than 10 days.
But Justice Anton Scalia, in a concurring opinion, argued against the broad guidelines the justices set.
"The Court's decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates," Scalia wrote.
Joining his concurrence were three conservative justices who still sit on the bench: Chief Justice John Roberts, Justice Samuel Alito and Justice Clarence Thomas.
"For any untried stratagem of the sort Trump may be contemplating, there will be an uncertain outcome in the Supreme Court," Litman said.
But Chafetz noted that the current Supreme Court has taken a broad view of presidential authority, like earlier this year in its immunity ruling.
"This Supreme Court is one that is very invested in executive power," Chafetz said. "It's also a Supreme Court that has been very friendly to Trump generally, and so I would be surprised if they stepped in to block recess appointments under those circumstances."
Recess appointments have been used by past presidents to fill administration roles, including more than 100 times by Bill Clinton and George W. Bush. Bush and Obama made recess appointments at the "deputy" level but not for Cabinet posts.
No recess appointments were made by the previous Trump administration or the Biden administration.
During his first term, Trump floated the idea as he expressed frustration with Senate Democrats opposing some of his nominees, but he never carried it out.
This time, he would be trying to do so while Republicans have a trifecta: control of the White House, the Senate and the House.
"That's his own party revolting and balking," Litman said, "and if he's somehow able to bypass that, that's an even greater amassing of power on his part."
Chafetz called it a "dominance play" from Trump.
"He wants to show that he can make the Senate abase itself, right?" he said. "He wants the entire Republican conference in the Senate to do this thing that's a show of fealty to him that involves not just the act of confirming his nominees, but actually adjourning itself so as to give up its power and let him do this unilaterally."
