How Johnson could make Trump's recess appointments a reality
Talk of cutting out Dems — and GOP dissenters — is more than just idle rhetoric.
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Donald Trump's plan to stock his cabinet with the most appalling MAGA nihilists hinges on the obeisance of one man in particular: House Speaker Mike Johnson. And given Johnson's track record of cowardice, Trump may indeed get what he wants — and demolish a pillar of democracy along the way.
The crescendo of increasingly nightmarish picks like Tulsi Gabbard, Matt Gaetz, and Robert F. Kennedy Jr. almost makes Liz Dye's take here at Public Notice — that Trump is trying to install the crowd at the Star Wars cantina — seem too kind.
So beyond the pale are Trump's worst choices that even some Republicans in the Senate are balking. And it's worth remembering that many Trump nominees during his first term in office withdrew from consideration in the face of GOP inaction or hostility.
But whether or not Republican senators are inclined to revert to subservience and greenlight these nominations, Trump is already armed with a plan to bypass the confirmation process entirely. He wants to fill vacancies without a confirmation vote by making so-called recess appointments when the Senate is not in session — a power granted to him by the Constitution. And he has a path to do it.
A will and a way
For many years, Congress has not actually taken a formal recess, precisely to deny presidents the ability to side-step lawmakers. Trump, though, has demanded that the Senate resume the practice of adjourning itself so that he can ram his picks through without any oversight.
The GOP's new majority leader, John Thune, replied submissively to Trump’s demand, saying on Fox News last week that "all options are on the table." And Johnson echoed that sentiment on Fox News Sunday yesterday, saying of recess appointments that “there may be a function for that.” (Watch below.)
It turns out that, even for a legislative body that often convenes for just three days a week, it's surprisingly difficult for the Senate to take a proper, on-the-books break. Such an adjournment requires a majority vote, which even Thune acknowledged might be "a problem" for some Republican senators.
But even if Senate Republicans could muster a majority, a motion to recess can be amended, as Semafor's Burgess Everett notes. That means Democrats could hold up such a motion indefinitely, unless Republicans were to unilaterally change Senate rules regarding recesses — a move Everett calls "a smaller-scale version of the 'nuclear option'" that might also have a hard time garnering 50 votes.
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This, finally, is where Johnson could prove himself as Trump's useful stooge. It all rests on a never-invoked provision of the Constitution found in Article 2, Section 3, which says 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."
To our nation's founders, this rule represented a considerable narrowing of executive power, since it applies to only a single issue: disputes between the two houses over adjournment. Alexander Hamilton, for instance, noted that the king could dissolve parliament for any reason, not just in the specific instance described above.
But today, the notion of the president of the United States simply sending Congress home on his say-so is one Trump and his enablers could exploit to ram through his parade of horribles. It all hinges on whether Johnson is willing to play ball.
The implosion of checks and balances
Of course, Trump being Trump, we don't know the actual contours of his plan. Obscurantism, after all, is baked into every autocracy. But conservative legal commentator Ed Whelan — who has been very warm toward Trump's appointees in the past — recently laid out a likely approach.
Under this scenario, Johnson would put forth what's known as a "concurrent resolution" that would call for both the House and the Senate to adjourn, which the House would then approve. At that point, it would no longer matter if the Senate was unable to muster a majority to go into recess. Trump would simply cite Article 2, Section 3 and direct both chambers to adjourn — perhaps for a very long time.
That would grant Trump his coveted recess, and just like that, he could name the entire Star Wars cantina to his cabinet all at once.
Whelan called the whole idea "bonkers," but it's telling that he directed a public plea to Johnson, begging him not to "be complicit in eviscerating the Senate's advice-and-consent role."
Johnson, however, surely doesn't care about such niceties. What matters is simply whether he can get 218 votes to back him up. The only piece of potentially good news in all this is that, thanks to the anarchic House GOP caucus, Johnson has labored mightily to cobble together majorities in the past and often failed. That task will be as tough as ever given his extremely narrow majority.
But Republicans understand very well that parliamentary maneuvering seldom matters to voters, so on this occasion, the speaker conceivably could keep his coalition together — especially considering the possibility that well-funded primary challengers could be sicced on Republicans who don’t toe the line.
That leaves only the Supreme Court, which clamped down on recess appointments once before. But that ruling came down when Barack Obama was president. The court's far-right supermajority, which has enabled Trump time and again, would likely have little problem finding a facile way to sanction such appointments with a Republican in charge.
It's still possible none of this comes to pass. The Senate could, for instance, retain a fig-leaf version of its right to vet nominees by simply rubber-stamping Trump's picks, no matter how odious or unqualified. It looks like Thune will be able to spare three votes in the Senate, after all.
But even if a few Republican senators stand up for themselves and resist Trump's recess appointments scheme, no one should assume Mike Johnson would do the same. And if he caves, a cornerstone of our democracy will crumble with him.
David Nir is the publisher of The Downballot, a Substack devoted to the thousands of elections below the presidency, from Senate to city council. Click here to check it out and subscribe.
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"But Republicans understand very well that parliamentary maneuvering seldom matters to voters..." I would agree with you except for the fact that this particular maneuvering is not only easy to understand, it sends a clear message that Republicans won't represent voters and won't work with Democrats. It also ignores the fact that most of the House Republicans hate Gaetz and would enjoy taking him down, especially now that he's out of office. I also don't think Senate Republicans want to give up their leverage and political power. Trump is a lame duck from day one and when things begin to go south, Republicans up for re-election in 2026 will bear the cost, not Trump. They're also not happy with Muskaswamy telling them what to do and trying to assum even more of their political power. Never ignore the pettiness and self-centeredness of politics.
I think the power given to "Little Man" Johnson has gone to his head. He wants to be one of the boys, but given the chance Trump and his ilk will tread all over him.