“Are you shitting me?” Rep. Mike Simpson (R–Idaho) request when informed that Donald Trump planned to nominate Matt Gaetz, a former Florida congressman with little legal experience and who is mainly known for antagonizing his fellow Republicans and vigorously defending the former and future president as attorney general. Other Trump picks, including Fox News host Pete Hegseth, like secretary of defense and anti-vaxxer Robert F. Kennedy Jr. as Secretary of Health and Human Servicesprovoked a similar response.

Even in a Republican-controlled Senate, questions about the qualifications of Trump’s proposed cabinet members could pose problems during their confirmation hearings. Article II, Section 2, Clause 2 of the Constitution states that the President “shall appoint” all “officers of the United States” and “shall appoint” them “by and with the Advice and Consent of the Senate.” With 53 Republican senators and ties decided by the vice president, the opposition of just four Republicans would be enough to block a nomination, and several of them have already indicated that they do not plan to endorse Trump’s choices . But Trump is proposing an alternative that would avoid needing Senate approval.

“Any Republican senator seeking to fill the coveted LEADERSHIP position in the United States Senate must accept paused nominations,” Trump said. wrote in an X message on Sunday, “otherwise we will not be able to confirm people in a timely manner.” He was referring to Article II, Section 2, Clause 3, which says: “The President shall have power to fill all vacancies which may arise during the recess of the Senate, by granting commissions which shall expire at the end of their term.” next session. “.

Sen. John Thune (R-SD), who was elected Wednesday, majority leader of the new Senate, seems open to this option. “We must act quickly and decisively to get the president’s nominees in place as quickly as possible, and all options are on the table to achieve this, including recess appointments,” he said. he declared. said in an X post on Sunday. “We cannot let (outgoing Senate Majority Leader Chuck) Schumer and Senate Democrats block the will of the American people.”

Gaetz et al. take office without Senate review? The short answer is yes, although it would depend on approval by the Senate majority. required to request a suspension, which seems doubtful.

The Supreme Court approved Trump’s approach by solve two ambiguities in the clause on recess appointments. First, the constitutional text does not clearly specify whether the “vacancies” that the president fills must occur “during the recess of the Senate.” Second, it is not clear what constitutes “Senate recess.”

In the case of 2014 NLRB v. Conservewhich involved the alleged vacation appointments of three members of the National Labor Relations Board by President Barack Obama, the Supreme Court address these two questions. Concerning “the scope of the words ‘vacancies which may arise'”, the Court noted that the expression could “refer only to vacancies which first appear during a suspension” or also to “vacancies which arise before a suspension but which continue to exist. exist during recess. All judges agreed that the clause “applies to both types of vacancies.”

Concerning “the scope of the words ‘suspension of the Senate,'” the Court noted that the phrase could “refer only to an intersessional recess (i.e., a break between formal sessions of Congress).” Alternatively, this could “include an intra-session break, such as a summer break in the middle of a session.” The Court held that the phrase “applies to both types of vacation,” but with a caveat.

“When the nominations took place, the Senate was in recess for three days,” Justice Stephen Breyer wrote in the majority opinion. “Three days is too short a period of time to impose a suspension under the clause. We therefore conclude that the President did not have the authority to make the appointments for the suspension in question.”

Relying on historical practice, the Court held that “a suspension of more than three days but less than ten days is presumed to be too short.” Although “Congress has taken short recess for nearly 200 years and there have been several thousand recess appointments during that time,” Breyer wrote, “we have not found a single example of suspension appointment made during an intra-session suspension that was less than 10 days. »

Given these constraints, the Senate could therefore renounce its role of “advice and consent” in presidential nominations by decreeing a suspension, in which case Trump’s nominees could be useful until the end of the next Senate session in 2026. But vacancies require majority approval, raising questions about whether 51 Republican senators are willing to let controversial nominees take office without confirmation.

Trump clearly cannot count on Sen. Lisa Murkowski (R-Alaska), who think Gaetz is “not a serious candidate” and stressed the importance of the Senate’s role. “There is a process, it is not discretionary,” says Murkowski said Wednesday. “It’s in the Constitution. It says, ‘This is the role of the Senate.’ So I’m confident that as a member of the Senate, we have our job to do, just as the president has his powers I will not accept that the United States Senate is simply an extension of the White House but. an equal institution.

Trump also cannot count on Senator Susan Collins (Republican of Maine), who said she was “shocked” by Gaetz’s choice. “If the president follows through on this nomination,” she said said“I think it shows the importance of the Senate advice and consent process.” She added that “I’m sure there will be a thorough background check by the FBI, public hearings and lots of questions asked.”

Sen. Joni Ernst (R-Iowa) also doesn’t seem willing to let Gaetz slip in during a recess, adage“He has a tough climb.” Although “we always give the president the benefit of the doubt,” Sen. Mike Rounds (R-SD) said“we still need to play our part in terms of due diligence.”

Senator Thom Tillis (R–NC) said recess appointments should be used “judiciously”, expressing concerns about “general recess appointments”. Thursday, despite its opening for appointments for the holidays, Thune said he prefers “the regular process to get these candidates through,” adding that his “intention” is to “get these people out there and voting.”

Senator John Cornyn (R-Texas) also questioned the viability of the shortcut demanded by Trump. “We have a process here to vet presidential candidates,” Cornyn said. said journalists Thursday. “This is a constitutional responsibility of the Senate, and I intend to play my role as a member of the Judiciary Committee in providing this review, advice and consent.” He added that “I don’t think we should skirt the responsibilities of the Senate” and that “it’s premature to talk about recess appointments.”

Former House Speaker Kevin McCarthy (R–Calif.), from whom Gaetz was ousted directedseems convinced that his enemy will never take office as attorney general. “Look, Gaetz is not going to be confirmed,” he said. said Wednesday. “Everyone knows it.” More worryingly for Gaetz, Sen. Kevin Cramer (R-ND) agreed with McCarthy’s prediction: adage“I think he’s kind of right, actually.”

Cramer expressed doubts about whether trying to get Gaetz confirmed would be worth it. “I’m afraid it won’t get across the finish line and we’re going to spend a lot of political capital,” he said. said journalists Thursday. “A lot of people will spend a lot of political capital on something that, even if they did, you would have to question whether it’s worth it.”

Cramer’s remarks suggest that, like Murkowski, Collins, Ernst, Rounds, Cornyn and perhaps Thune, he assumes Gaetz (and likely other high-profile candidates) will have to go through the usual process. For now, at least, the calculations do not favor Trump’s final plan.