November 22, 2024 7:00am by David Farrar

A cunning plan?

There could be a fascinating constitutional stand-off, with Trump’s more controversial Cabinet picks. There are three ways they can be appointed.

They get confirmed by the Senate, with at least 50 votes in favour. This appears very unlikely at this stage for Gaetz (who has just withdrawn) and may be difficult for Gabbard and RFK Jr.
The Senate agrees to go into recess, so Trump can do recess appointment for up to two years. But Senators won’t be keen to give up their role to consent.
Trump and the House force the Senate to adjourn against the will of the Senate, and then makes a recess appointment.

The third option is one being talked about. It relies on the clause in the constitution that says:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, 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;

So how this would work is Trump convenes both Houses for an issue, and then asks them to adjourn. The House agrees to adjourn and the Senate doesn’t. This then allows the President to adjourn them both.

Such a move would be unprecedented – the President and the House working together to force the Senate out of session, so they can’t perform their advice and consent role. It would require the entire GOP House to vote for it, and courts would have to rule on if it is constitutional. But it can’t be ruled out.

It would also be short-sighted, because it would mean a future Democratic President who has a Democratic House but not a Democratic Senate (which is often the case) could use this procedure to bypass a Republican Senate for all their appointments.

Current Polymarket odds for Senate confirmations are: