By Carl Hulse
President-elect Donald Trump’s determination to crash over traditional governmental guardrails will present a fundamental test of whether the Republican-controlled Senate can maintain its constitutional role as an independent institution and a check on presidential power.
With Trump putting forward a raft of contentious prospective nominees and threatening to challenge congressional authority in other ways, Republicans who will hold the majority come January could find themselves in the precarious position of having to choose between standing up for their institution or bowing to a president dismissive of government norms.
The clearest and most immediate point of tension is likely to be Trump’s efforts to skip the Senate’s traditional confirmation process to install loyalists, including some with checkered backgrounds, in his Cabinet. But the president-elect has also signaled he expects Republicans on Capitol Hill to accede to his wishes on policy, even if that means ceding Congress’ control over federal spending. Both are powers explicitly given to the legislative branch in the Constitution.
Lawmakers and analysts say allowing Trump to erode the Senate’s authority to pass judgment on nominees by sidestepping it through recess appointments or watered-down background checks could do permanent damage to the Senate and undermine the constitutional system.
“It is the central pillar in the checks-and-balances system,” said Ira Shapiro, a former longtime Senate staffer and author of three books on the institution. “There is nothing more central to the Senate’s role than the advice and consent authority.”
He and others were heartened by the Senate resistance that led to the withdrawal of former Rep. Matt Gaetz as a candidate for attorney general. The election of Sen. John Thune of South Dakota as the incoming majority leader despite a MAGA-driven campaign to reject him and install Sen. Rick Scott of Florida, a die-hard Trump acolyte, was also seen as a sign that some Senate Republicans were not ready to capitulate to Trump.
But Thune’s election was by secret ballot, and Gaetz likely represented just the first, not the last, effort by Trump and his allies to bring the Senate to heel.
The prospect of a constitutional clash between Republican senators and a president of their own party originated with Trump’s call for Senate leaders to embrace so-called recess appointments — a disputed practice of installing nominees when the Senate is on a break — to circumvent resistance and accelerate the approval of his candidates.
That idea immediately set off alarms with some Senate Republicans who see their advice and consent role as defined in Article II, Section 2 of the Constitution as one of their defining responsibilities. Several of them said they intended to do what they could to preserve it; Sen. Mitch McConnell of Kentucky, the outgoing Republican leader, has signaled he may be one of them.
“The Senate has the constitutional obligation that many of us take very seriously, the advice and consent provisions,” said Sen. Susan Collins, R-Maine. She said that backing off that power “would be violating the intent of the founders. We would be ignoring specific language in the Constitution, and we would be undermining, in a profound way, the authority of the Senate and responsibility that we have.”
Scott represents a faction of Senate Republicans with strong fealty to Trump and the MAGA agenda, a group consisting of some veteran conservatives along with newer members from the last two elections, including this year’s winners who rode Trump’s coattails. Collins represents a core of institutionalists that includes Sen. Lisa Murkowski of Alaska and McConnell, who has been a strong critic of recess appointments.
“Senators can vote any way they want, but we all take an oath to uphold the Constitution that includes the advice and consent provisions,” said Sen. John Cornyn, R-Texas. “Some people may feel so strongly about this administration that they want to just vote ‘yes’ on all of them, and that’s their prerogative. That’s not my position.”
The divide among Senate Republicans over how far they will go in backing Trump has left Thune, who will take over Jan. 3, walking a fine line. He has said that Trump has the right to choose who he wants for top positions, but Thune has also suggested he is committed to preserving the Senate’s role of vetting and voting on those tapped to fill the executive branch at the highest levels. Thune has said all options are open for doing so.
“I always believe that you defer to a president when it comes to the people they want in their Cabinet to do a lot of these important jobs,” he said in November on Fox News. “But obviously there is a process whereby we get down and scrub all these nominees and figure out, one, if they are qualified and are they people who are fit to hold these offices.”
As the new administration assumes control, both the House and Senate are likely to face other challenges to their fundamental authority, including assertions by some in Trump’s inner circle that the administration is not bound to spend money even if Congress appropriates it for a designated purpose.
But lawmakers expect that the handling of nominees in the early days of the Trump administration will be telling about the Senate’s future.
“If we allow recess appointments to fill the entire Trump Cabinet without confirmation hearings, we take away one of the most important tools senators have,” said Sen. Chris Coons, D-Del. “Whether or not the Senate can be the institution that our framers intended is going to be proven one way or the other here in the next two months.”
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