WASHINGTON (AP) — It’s a miniature phrase in the Constitution that’s mentioned in passing. But it is already taking on outsized importance as President-elect Donald Trump plans his return to office.
The withdrawal of Matt Gaetz as Trump’s nominee for attorney general has dramatically confirmed that the Senate retains its “advise and consent” powers when it comes to vetting and installing a presidential cabinet. Still, it may be just a brief respite from the intense battles that lie ahead as Senate Republicans try to preserve their constitutional role.
Trump has made his Cabinet announcements at a rapid pace, often via social media, often catching Republican senators off guard. Gaetz’s election on November 13, in particular, caused a shock and a moment of disbelief among Republicans. His withdrawal just over a week later was just as sudden, leaving many at a loss for words.
Within hours, Trump went ahead and announced on social media that he had chosen another loyalist, former Florida Attorney General Pam Bondi, to lead the Justice Department. Trump made the rest of his Cabinet selections over the weekend.
The dizzying pace of the election has given Trump’s second term a swinging start, a show of force from a president-elect who has made clear he intends to pack his administration with officials ready to upend Washington’s behavior. His desire to pack the government with loyalists and exercise executive power in an sweeping manner is sure to lead to habitual clashes with Congress, even with Republicans in control.
“From what I’m hearing from my Republican colleagues at every level, from defense secretary to other positions, it sounds like they’re ready to go for Mr. Trump,” said Sen. Tammy Duckworth, a Democrat Illinois, on CBS’ “Face the Nation.”
Republican senators are choosing their words carefully as they assess Trump’s proposed Cabinet, while also offering gentle reminders of their role in the confirmation process.
“The constitutional directive is clear and does not change because of the personalities involved,” said Sen. Mike Rounds, a Republican from South Dakota. “In my opinion, the president has a responsibility to make nominations and we give him the benefit of the doubt, but we have a responsibility for ‘advice and consent’.”
Gaetz’s nomination was scrapped after Republican senators privately expressed concerns about a heated confirmation hearing in which he was accused of having sex with an underage girl. According to outgoing Republican Sen. Mike Braun of Indiana, four to six GOP senators have signaled their reservations, although the number was certainly higher.
With Democrats poised to oppose Cabinet nominees they deem unqualified and extreme, Trump’s margin for error is slim. Republicans are expected to have a 53-47 majority in the next Senate, so a loss of just four Republicans would mean a defeat for any candidate who does not enjoy bipartisan support.
Other Cabinet members also face a complicated path to confirmation. Trump’s transition team has not yet signed the necessary agreements that would allow the FBI to review his personnel decisions and is sending nominees to the Senate without the typical vetting that comes beforehand.
So far, Trump’s nominations for defense secretary have included Pete Hegseth, a Fox News personality who has been accused of sexual assault, which he denies; for Health and Human Services Secretary Robert F. Kennedy, Jr., who also faced allegations of sexual misconduct and concerns over his opposition to vaccinations; and for Director of National Intelligence Tulsi Gabbard, a former Democratic House member who has embraced Russian propaganda and talking points.
These decisions fall outside the Republican mainstream and represent a notable departure from when Trump first entered the White House, largely choosing from among the ranks of Republican officials who were highly respected throughout Washington.
“The Constitution gives us a staff role called ‘advice and consent,'” said Sen. Mitch McConnell, the outgoing Senate Republican leader who will remain in office next year. “My view is that’s exactly what’s going to happen when these nominees are actually sent forward, and we’re going to treat them the same way we’ve treated all the others with proper vetting.”
Still, Trump’s allies argue that senators must be ready to confirm the Cabinet no matter who is chosen.
“The president deserves to be able to put people in place to do what he campaigned for, which is to disrupt, and the establishment is worried, and that’s probably what they should do,” said Sen. Eric Schmitt, a Republican from Missouri , adding: “I fully support President Trump’s ability to choose his people to do this.”
After Gaetz’s withdrawal, Trump supporters circulated on social media and activist circles the names of Republicans they believed would support him. Charlie Kirk, whose conservative youth organization Turning Points Action worked closely with the Trump campaign, is already organizing a “grassroots army” to pressure senators to confirm his nominees.
That might not even matter. Trump has also demanded that Senate Republicans agree to allow him to make appointments during recess. It would require the Senate to adjourn so that Trump can exercise his constitutional authority to make appointments while the chamber is in recess. Sen. John Thune, who will take over as Senate majority leader in January, has left that option on the table, saying he would be inclined to exploit it if Democrats tried to delay confirmations.
It would be unprecedented in contemporary times for the Senate to voluntarily resign to allow the president to appoint top-level Cabinet members. Experts say this would be tantamount to giving up the chamber’s constitutional power over Cabinet decisions.
“It highlighted Republicans’ choices in the Senate,” said Sarah Binder, a political scientist at George Washington University. “To whom are you loyal and to what extent are you willing to put your loyalty to President Trump above your procedural rights and constitutional authority?”
But some Trump allies have also discussed a scenario in which the Republican-controlled House of Representatives could vote to prorogue Congress. Even if the Senate also rejected adjournment, this could theoretically result in a “disagreement” between the two chambers, allowing the president to exploit a constitutional power to adjourn Congress until a time he deems “appropriate.” “holds.
Nevertheless, this constitutional provision was never tried, and Binder maintained that it was still within the power of Senate leaders to immediately call the chamber back into session. But it would also be another test for the senators.
“A constitutional system only works if the people in the institutions are committed to protecting their constitutional rights to advice and consent,” said Binder.
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Associated Press writers Lisa Mascaro and Mary Clare Jalonick contributed.
