WASHINGTON – That’s it a brief sentence in the Constitutionmentioned in passing. But it’s already taking on enormous importance as President-elect Donald Trump plots his return to office.
Matt Gaetz’s withdrawal as Trump’s nominee for attorney general dramatically confirmed that the Senate still retains its “advise and consent” powers when it comes to vetting and appointing the president’s Cabinet. But it may only be a brief respite from the intense fighting that will come as Senate Republicans try to maintain their constitutional role.
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Trump releases his cabinet announcements at a rapid pace, often via social media, and often surprises GOP senators. In particular, Gaetz’s election on November 13 left Republicans shocked and momentarily stunned. His withdrawal just over a week later was equally sudden, leaving many speechless.
Within hours, Trump went further and announced on social media that he had chosen another loyalist, former Florida Attorney General Pam Bondi, to lead the Justice Department. Over the weekend, Trump completed the rest of his cabinet.
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The dizzying speed of pickaxes gave Trump a promising start to his second term, and it was a show of strength from the president-elect who made clear he intended to staff his administration with officials ready to upend Washington’s path. His desire to pack the government with loyalists and wield executive power in an comprehensive manner appears certain to lead to regular clashes with Congress, even under Republican control.
“From what I’m hearing from my Republican colleagues on a variety of issues, from secretary of defense to other positions, it looks like they’re ready to make way for Mr. Trump,” Sen. Tammy Duckworth, an Illinois Democrat, said on CBS’ ” Face of the Nation.
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Republican senators are choosing their words carefully as they assess Trump’s proposed cabinet while gently reiterating their role in the confirmation process.
“The constitutional guidelines are clear and do not change based on the individuals involved,” said Sen. Mike Rounds, a Republican from South Dakota. “In my opinion, the president has an obligation to make nominations and we give him the benefit of the doubt, but we have an obligation to provide ‘advice and consent.’
Gaetz’s nomination was rejected after Republican senators privately feared a volatile confirmation hearing over allegations that he had sex with an underage girl. According to outgoing GOP Sen. Mike Braun of Indiana, as many as four to six GOP senators signaled their reservations, although the number was certainly higher.
With Democrats poised to oppose Cabinet nominees they consider unqualified and extreme, Trump’s margin for error is slim. Republicans will have a 53-47 majority in the next Senate, so a defection by just four Republicans would mean defeat for any candidate who does not enjoy bipartisan support.
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Other types of Cabinet nominees also have a complicated path to confirmation. Trump’s transition team has not yet signed required agreements that would allow the FBI to scrutinize his personnel choices, sending nominees to the Senate without the usual prior vetting.
So far, Trump’s picks for defense secretary include Pete Hegseth, the Fox News personality who has been accused of sexual assault, which he denies; on behalf of Secretary of Health and Human Services Robert F. Kennedy Jr., who has also faced allegations of sexual misconduct as well as concerns about his opposition to vaccines; and Director of National Intelligence Tulsi Gabbard, a former Democratic House member who repeats Russian propaganda and arguments.
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This election transcends the mainstream of the Republican Party and represents a notable departure from when Trump first entered the White House and chose largely from Republican officials who were highly respected throughout Washington.
“The Constitution gives us a role on the staff called ‘advice and consent,’” said Sen. Mitch McConnell, the outgoing Senate Republican leader who will remain in office next year. “In my view, that is exactly what will happen when these nominees are actually sent out, and we will treat them as we have treated everyone else after proper vetting.”
Still, Trump allies argue that senators must be willing to confirm the Cabinet, regardless of who is chosen.
“The president deserves to be able to appoint people who will do what his campaign was based on, which is disruption, which is a concern for the establishment and probably should be,” said Sen. Eric Schmitt, a Republican from Missouri, adding: “In “I fully support President Trump’s ability to elect his people to do this.”
After Gaetz withdrew, Trump supporters on social media and in activist circles spread the names of Republicans they believed supported Trump. Charlie Kirk, whose conservative youth organization Turning Points Action has worked closely with the Trump campaign, is already organizing a “grassroots army” to pressure senators to confirm his nominees.
It might not even matter. Trump also demanded that Senate Republicans agree to it halftime meetings, trial under which the Senate will adjourn the session so that Trump can exercise his constitutional power to make nominations while the chamber is in recess. Sen. John Thune, who will take over as Senate majority leader in January, left that option on the table, saying he would be willing to use it if Democrats try to delay approvals.
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It would be unprecedented in this day and age for the Senate to voluntarily relent and allow the president to make top-level Cabinet nominees. Experts say that would mean giving up the house’s constitutional authority over cabinet selections.
“It crystallized the choices that Republicans were making in the Senate,” said Sarah Binder, a political scientist at George Washington University. “To whom are you loyal, and how far are you willing to put your loyalty to President Trump above your procedural rights and constitutional entitlements?”
However, some Trump allies have also discussed a scenario in which the Republican-controlled House could vote to adjourn Congress. Even if the Senate also refused to adjourn, it could theoretically create a “miscommunication” between the two chambers, allowing the president to exercise his constitutional power to adjourn Congress until a time he deems “appropriate.”
Still, this constitutional provision was never tested, and Binder assured that Senate leaders would still be able to quickly call the chamber back into session. But it would also be another test for the senators.
“The constitutional system will not work unless the people of the institution stand up and fight to maintain their constitutional right to counsel and consent,” Binder said.
