“Are you kidding me?” Rope. Mike Simpson (R–Idaho) asked when he was informed that Donald Trump planned to nominate Matt Gaetz—a former Florida congressman with little legal experience who is mainly known for antagonizing other Republicans and vigorously defending the former and future president—as attorney general. Other Trump picks, including Fox News host Pete Hegseth as defense secretary and anti-vaxxer Robert F. Kennedy Jr. as Secretary of Health and Human Serviceshas elicited 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 nominate” all “officers of the United States” and “shall appoint” them “with and with the advice and consent of the Senate.” With 53 GOP senators and ties decided by the vice president, opposition from just four Republicans would be enough to block a nomination, and several of them have already indicated they don’t plan to rubber-stamp Trump’s choice. But Trump is pushing an option that would avoid the need to get Senate approval.

“Every Republican senator seeking the coveted LEADERSHIP position in the United States Senate must agree to recess appointments,” Trump wrote in an X post on Sunday, “without which we won’t be able to get people confirmed in time.” He was referring to Article II, Section 2, Clause 3, which states: “The President shall have power to fill all vacancies which may happen during the recess of the Senate by granting commissions which shall expire at the end of the next session. .”

Late. John Thune (R–SD), who was selected majority leader of the incoming Senate on Wednesday, seems open to this option. “We must act quickly and decisively to get the president’s nominees in place as soon as possible, and all options are on the table to make that happen, including recess appointments,” he said in an X post on Sunday. “We cannot let (outgoing Senate Majority Leader Chuck) Schumer and the Senate Dems block the will of the American people.”

Can Gaetz et al. take office without Senate review? The short answer is yes, although that would be subject to Senate majority approval necessary to call a slot, which looks doubtful.

The Supreme Court has approved the approach advocated by Trump solve two ambiguities in the break appointment clause. First, it is not clear from the text of the Constitution whether the “vacancies” filled by the President must be “during the recess of the Senate”. Second, it is not clear what counts as “Senate recess”.

In the 2014 case NLRB v. Canninginvolving the alleged recess appointments of three members of the National Labor Relations Board by President Barack Obama, the Supreme Court addressed both of these questions. Regarding the “scope of the words “vacancies which may occur,”” the court noted that the phrase “can refer only to vacancies that first occur during a recess” or also to “vacancies that occur before a recess but continue to exist during the recess.” All the judges agreed that the clause “applies to both types of vacancies.”

Regarding the “scope of the words “recess of the Senate,” the court noted that the phrase “could refer only to an intersessional recess (i.e., a recess between formal sessions of Congress).” Alternatively, it could “include an in-session recess, such as a summer recess in the middle of a session.” The court held that the phrase “applies to both types of recesses,” but with a caveat.

“When the appointments before us took place, the Senate was in the middle of a 3-day recess,” Justice Stephen Breyer wrote in the majority opinion. “Three days is too short a time to obtain a stay under the Clause. Therefore, we conclude that the President lacked the authority to make the appointments at issue here.”

Based on historical practice, the court held that “a break of more than 3 days but less than 10 days is presumptively too short.” Although “Congress has taken short recesses for nearly 200 years, and there have been many thousands of recesses in that time,” Breyer wrote, “we have not found a single example of a term appointment made during a midsession shorter than 10 days .”

Within these limitations, the Senate can abdicate its “advise and consent” role on presidential appointments by calling a recess, in which case Trump’s nominee could serve until the end of the next Senate session in 2026. But suspensions require majority approval, raising the question of whether 51 Republican senators are willing to let controversial nominees take office without confirmation.

Trump obviously can’t count on Sen. Lisa Murkowski (R–Alaska), who thinking Gaetz is “not a serious candidate” and has stressed the importance of the Senate’s role. “There is a process, it’s not arbitrary,” Murkowski said on Wednesday. “It’s in the Constitution. It says, ‘This is the role of the Senate.’ be an extension of the White House but an equal institution.”

Trump also can’t trust Sen. Susan Collins (R–Maine), who said she was “shocked” by the Gaetz pick. “If the president goes ahead with the nominee,” Hon said“I think it shows the importance of having the Senate’s advice and consent process.” She added that “I’m sure there will be extensive background checks by the FBI and public hearings and a lot of questions being asked.”

Late. Joni Ernst (R–Iowa) also doesn’t sound willing to let Gaetz slip in during a recess, says“He has an uphill climb.” Although “we always give the president the benefit of the doubt,” Sen. Mike Rounds (R–SD) said“we still have to do our part in terms of due diligence.”

Late. Thom Tillis (R–NC) said term bookings should be used ‘deliberately’, express concerns about ‘general break visits’. On Thursday, despite its previous openness to vacant appointments, Thune said he favors “the normal process of getting these nominees through,” adding that his “intention” is to “get these people going and get voting.”

Late. John Cornyn (R–Texas) also doubted the feasibility of the shortcut Trump is demanding. “We have a process here to consider presidential candidates,” Cornyn told reporters on Thursday. “That is a constitutional responsibility of the Senate, and I intend to play my role as a member of the Judiciary Committee to do that review and advice and consent.” He added that “I don’t think we should sidestep the Senate’s responsibilities” and that “it’s too early to talk about recess appointments.”

Former House Speaker Kevin McCarthy (R–Calif.), whom Gaetz ousted at the topseems convinced that his nemesis will never take office as prosecutor. “Look, Gaetz is not going to be confirmed,” he said on Wednesday. “Everybody knows that.” More ominously for Gaetz, Sen. Kevin Cramer (R–ND) agreed with McCarthy’s prediction, says“I think he’s quite right, actually.”

Cramer expressed doubts about whether it would be worth the effort to try to get Gaetz confirmed. “I’m worried that he can’t cross the finish line, and we will spend a lot of political capital,” he told reporters on Thursday. “A lot of people will spend a lot of political capital on something that, even if they got (it) done, you have to wonder if it was worth it.”

Cramer’s comments suggest he, like Murkowski, Collins, Ernst, Rounds, Cornyn and perhaps Thune, assumes Gaetz (and presumably other top-level nominees) will have to go through the usual process. For now, at least, the math doesn’t favor Trump’s proposed runoff.

The post The math doesn’t favor avoiding Senate scrutiny of Trump’s bizarre cabinet picks appeared first Reason.com.