WASHINGTON – It's a short phrase in the Constitution, mentioned in passing. But it's already taking on an outsize significance as President-elect Donald Trump charts his return to office.
The withdrawal of Matt Gaetz as Trump's nominee for attorney general dramatically affirmed that the Senate still maintains its “advice and consent” powers when it comes to vetting and installing a president's Cabinet. Yet it may be only a brief reprieve from the intense struggles to come as Senate Republicans try to preserve their constitutional role.
Recommended Videos
Trump has been making his Cabinet announcements at a rapid clip, often over social media, and frequently catching GOP senators off guard. Gaetz’s selection on Nov. 13, in particular, left Republicans shocked and momentarily dumbfounded. His withdrawal just over a week later came just as suddenly, leaving many grasping for words.
Within hours, Trump had moved on, announcing on social media that he had selected another loyalist, former Florida Attorney General Pam Bondi, to run the Justice Department. Over the weekend, Trump filled out the rest of his Cabinet selections.
The dizzying speed of the picks has given Trump's second term in office a bracing start, a show of force from a president-elect who has made clear he intends to fill his administration with officials who are willing to upend the ways of Washington. His desire to pack the government with loyalists and wield executive power in expansive ways seems certain to result in frequent clashes with Congress, even with Republicans in control.
“From what I’m hearing from my Republican colleagues on everything from defense secretary to other posts, it sounds like they are ready to roll over for Mr. Trump,” Sen. Tammy Duckworth, an Illinois Democrat, said on CBS' “Face the Nation.”
Republican senators are choosing their words carefully as they size up Trump's proposed Cabinet, while also issuing gentle reminders about their role in the confirmation process.
“The constitutional directive is clear, and it does not change based upon the personalities involved,” said Sen. Mike Rounds, a South Dakota Republican. “The way I approach it, the president has a responsibility to make nominations, and we give him the benefit of the doubt, but we do have a responsibility for ‘advice and consent.’”
Gaetz's nomination was sunk after Republican senators had privately become wary of a volatile confirmation hearing amid allegations he had sex with an underage girl. As many as four to six GOP senators were signaling their reservations, according to one outgoing Republican senator, Mike Braun of Indiana, though the number was certainly higher.
With Democrats ready to oppose Cabinet nominees they view as unqualified and extreme, Trump's margin for error is narrow. Republicans are set to have a 53-47 majority in the next Senate, so defections from just four Republicans would mean defeat for any nominee that doesn't enjoy bipartisan support.
Other Cabinet picks also face a complicated path to confirmation. Trump's transition team has so far not signed the requisite agreements that allow the FBI to screen his personnel choices, sending nominees before the Senate without the typical vetting that happens beforehand.
So far, Trump's nominees have included for defense secretary, Pete Hegseth, a Fox News personality who was accused of sexual assault, which he denies; for secretary for health and human services, Robert F. Kennedy, Jr., who has also faced allegations of sexual misconduct as well as concern about his opposition to vaccines; and for national intelligence director, Tulsi Gabbard, a former Democratic House member who has echoed Russian propaganda and talking points.
Those picks fall outside the Republican mainstream and are a notable departure from when Trump entered the White House the first time and mostly chose from the ranks of Republican officials well-respected across Washington.
“The Constitution gives us a role in personnel 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 will unfold here when these nominees are actually sent forward, and we will treat them like we've treated all others with proper vetting.”
Still, Trump's allies argue that senators need to be ready to confirm the Cabinet, no matter who is chosen.
“The president deserves to be able to put people in place who will do what he campaigned on, which is to disrupt, and the establishment is concerned, and they probably should be," said Sen. Eric Schmitt, a Missouri Republican, adding, “I fully support President Trump's ability to pick his people to go do that.”
After Gaetz's withdrawal, Trump supporters on social media and in activist circles circulated the names of Republicans they believed were holding out support. 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 recess appointments, a process whereby the Senate would adjourn so that Trump could use a constitutional power to make appointments while the chamber is in recess. Sen. John Thune, who will take over as Senate majority leader in January, has kept that option on the table, saying he would be inclined to use it if Democrats try to delay confirmations.
It would be unprecedented in modern times for the Senate to step aside willingly to allow the president to make top-level Cabinet appointments. Experts say it would amount to surrendering the chamber's constitutional power over Cabinet choices.
“It’s crystallized the choices for Senate Republicans,” said Sarah Binder, a political scientist at George Washington University. “Who is your loyalty to and how far are you willing to put your loyalty to President Trump above your procedural rights and constitutional powers?”
Yet some Trump allies have also discussed a scenario where the Republican-controlled House could vote to adjourn Congress. Even if the Senate declined to adjourn also, that could theoretically create a “disagreement” between the two chambers, which allows the president to tap a constitutional authority to adjourn Congress until a time he thinks is “proper.”
Still, that constitutional provision has never been tried, and Binder asserted that it would still be within the Senate leaders' ability to promptly call the chamber back into session. But it would also be a further test for the senators.
“A constitutional system doesn’t work unless those in the institutions stand up and fight to maintain their constitutional rights of advice and consent,” said Binder.
___
Associated Press writers Lisa Mascaro and Mary Clare Jalonick contributed.