Thread by @AJentleson

A quick 🧵 on what seems to be Trump's plan to obliterate the Senate's advise and consent responsibility so that he can recess appoint his cabinet, or at least those members who lack the votes to get confirmed by the Senate. 1/

Remember that only the Senate confirms nominees and judges. The House has no role in the confirmation process itself.

The Constitution allows POTUS to make recess appointments, ie to put nominees in place without Senate confirmation. In the past this has been used sparingly. 2/

For recess appointments to happen, the Senate has to be in recess. For a decade or so, the Senate has not been going into recess when it adjourns but pro forma sessions, which can last up to 3 days. Long story, it goes back to Rs blocking Obama from doing recess appointments. 3/

Gonna try to avoid the weeds here, but the fact that Senate has been going into pro forma sessions is why you have the odd spectacle of senators gaveling the Senate in and out of session every three days during longer "recesses" like holiday breaks. ANYWAY... 4/

To recess, the Senate needs to pass an adjournment resolution, which is and has always been a majority-rule vote (because nearly everything in the Senate used to be majority-rule until relatively recently). The House has to approve the Senate's adjournment res, and vice-versa. 5/

The Constitution gives POTUS the authority to adjourn both the House and Senate “in case of disagreement between them” about when to adjourn and for how long. Here’s Article II, Section 3.

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In theory - and I think this is Trump’s - he could adjourn the Senate even if it did not want to adjourn. The House passes an adjournment resolution, sends it to the Senate and the Senate rejects it, thus setting up the “disagreement” that triggers POTUS adjournment authority. 7/

At this point, the Senate would be in a formal recess and Trump could theoretically appoint as many officials as he wants. It wouldn't matter if his nominees have the votes to be confirmed by the Senate because Trump would have taken the Senate out of the process entirely. 8/

While the process is a little convoluted, the precedent is not: Trump wants to end the Senate's advise and consent role in presidential nominations. Period, end of story.

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On the politics, it doesn’t seem like Trump is nominating Gaetz and Gabbard as a bankshot play where he sacrifices them to get Hegseth. I think he really wants Gaetz and Gabbard, and will do whatever it takes to get them. 10/

Some folks are rightly pointing out that while the adjournment resolution is a majority-rule vote
on passage, it is amendable, which means Democrats could try to filibuster it by offering endless amendments - but i don’t think that changes the outcome for a few reasons. 11/

Think of this as replicating the Senate from 1917 to the early 2000s when cloture was available but rarely used.

The opposition could delay but whenever they tired the business at hand would come up for a majority-rule vote.

This would be a talking filibuster, basically. 12/

So problem #1 is the standard imitation on the talking filibuster - if Dems ever ran out of energy to hold the floor and offer amendments, the adjournment resolution would could up for a majority-rule vote. 13/

Problem #2 is that at any point, Republicans could change the rules and to limit amendments, speeches etc., via a majority-rule vote. Even if they didn’t have the votes initially, it’s easy to see how they would get them after a prolonged delay, under pressure from Trump. 14/

Problem #3 - and I want to caveat this because I’m not a constitutional scholar - is that under Trump’s theory it is not clear the Senate has to pass an adjournment resolution at all, since the POTUS adjournment power kicks in in case of a disagreement between the chambers. 15/

This is for the courts to decide, but under Trump’s theory, the House passes an adjournment resolution and if the Senate doesn’t, that constitutes “disagreement.” Who knows if that holds up in court but if things go this way I bet Trump will test it. 16/

https://x.com/AJentleson/status/1857085045367828808

Yup, my lay opinion is that some version of this is correct - suffice to say, the Framers did not intend to give POTUS power to unilaterally adjourn both houses, strip the Senate of its advise and consent role and recess appoint his cabinet! Rather… 17/

https://x.com/StevenJ1279/status/1857107170560548982

Something like: The Framers wanted each chamber to approve the others’ adjournment, but as a backup gave POTUS limited power to intervene if one chamber started messing with the other, would be be much more in line with the Framers’ general approach to balance of powers. 18/