Donald Trump’s second term as president could witness fractious breaks with many of America’s established constitutional norms. He has hinted at trying to get rid of senior US military figures whose views do not align with his, and even using legal action to pursue people who have “wronged” him over the past few years.
In this second Trump term, ultra-Maga loyalists are being lined up to serve in key positions and Trump will be free to embrace the new American right agenda, unlike in 2016 when he had to turn to the Republican party establishment for guidance.
There are over 1,000 posts to be filled in Trump’s new administration – including cabinet positions and ambassadorships. These roles normally require an approval vote in the US Senate (upper chamber of the US Congress).
The Senate vetting process was intended to be extensive and thorough, and designed to ensure presidential nominees are qualified and in good standing, and is also part of the checks and balances on the president.
The last presidential cabinet nominee not to be approved by the Senate was John Tower, nominated for defence secretary by George H.W. Bush in 1989.
But more recently Trump and other presidents have withdrawn candidates for cabinet roles if it seemed unlikely they would get nominations through the Senate, or when Senate investigations made information public that undermined their candidacy. Candidates have also withdrawn themselves under public scrutiny.
Trump has suggested that the Republican leadership in the Senate call a recess after he assumes the presidency, allowing him to unilaterally make all of his governmental appointments.
Many of Trump’s early picks had caused consternation] among Democrats such as Linda McMahon, Trump’s pick for Secretary of Education. But on their own they don’t have enough votes to stop a nomination going through, they would need some Republican votes. Matt Gaetz, who had been Trump’s nominee for attorney general, has just withdrawn from consideration.
There is a way, however, for Trump to bypass parliamentary procedure and confirm his preferred choices for all high-level government positions – recess appointments. Under Article II of the US constitution, known as the “recess appointments clause”, the president can make temporary appointments when the Senate is not in session, bypassing the need for congressional approval or vetting. Recess appointments are meant to be temporary and expire at the end of a congressional session, which is a year at most.
For Trump’s plan to work the Senate would need to agree, by majority vote, to adjourn for at least ten days. The House of Representatives must also consent to this move.
If it dissents, either with the decision to recess or the duration, then as law and politics professor at Georgetown University Josh Chafetz has explained, the president has the constitutional power to adjourn both the Senate and the House of Representatives (the lower house) for a time of his choosing.
This provision, under article II, section 3, of the constitution, states that in a case of disagreement between the Senate and House, the president “may adjourn them to such Time as he shall think proper”.
Sarah Binder, senior fellow at the Brookings Institution (an American thinktank), said that in the past when the Senate was out of session for months rather than weeks, recess appointments were a logical way for presidents “to fill important vacancies without waiting until the Senate returned … (and this) authority … was rarely challenged”.
Senators are bestowed with “advise and consent” powers, which come into focus when a president forms their cabinet. But, are there any Republicans willing to openly defy Trump’s demand for recess appointments? Perhaps some. Texas Republican Senator John Cornyn recently said: “I don’t think we should be circumventing the Senate’s responsibilities.”
Trump has also made clear his desire to use executive orders to assert his control over the US military and accelerate the process of removing generals found to be “lacking in requisite leadership qualities”. Executive orders are signed directives from a president that do not require Congressional approval.
The president-elect said during the election campaign that he would purge the military of so-called “woke” generals. Trump’s transition team has reportedly drafted a “warrior board” executive order that would establish a group with the power to dismiss three- or four-star generals.
This panel would send its dismissal suggestions to Trump and these job losses would be expected within 30 days. Concerns have also been raised by current and former US defence department officials that many within their ranks could be subjected to loyalty tests, and that Trump could use further executive orders to cut thousands of civil servants’ jobs and replace them with conservative allies.
Since winning his first presidential election in November 2016, Trump has made regular references to seeking revenge against political opponents. He has threatened investigations, prosecutions and even imprisonment.
In the weeks leading up to November’s election, Trump repeatedly referred to Democrats as the “enemy from within” and mused that the US National Guard may be needed to address this “danger”.
However, how could Trump, in a second administration, follow up on this? His pick for attorney general could in theory direct the Department of Justice to open investigations.
As Trump prepares to assume the presidency for the second time and continues to signal his desire to contravene many of America’s established constitutional conventions, a US Supreme Court ruling from earlier this year may take on more ominous significance. In July 2024 the court gave serving presidents sweeping immunity from criminal prosecution.
This may serve to deepen worries on the lengths Trump will go to get his way, and achieve what he told an audience in July 2019 during his first term: “I have the right to do whatever I want as president.”
Richard Hargy does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
