Capitol Hill, Constitutional Loopholes, and Trump's Controversial Picks

A look at Team Trump.

Since seizing the podium as President-elect following November’s electoral carnage, Donald Trump has rolled out a list of cabinet picks and White House appointments for the impending Trump Administration. His 2025 cabinet includes Pam Bondi as Attorney General and Scott Bessent as Treasury Secretary — the latter being the first openly gay appointment in a Republican administration.

Constitutional Obligations

As per Article II, Section 2: Treaty Power and Appointments, the U.S. Constitution requires the Senate to confirm each of these nominations. When first debating the ratification of the constitution, the Framers of the Constitution raised concerns that granting a President the exclusive authority to appoint executives could potentially feed into a dictatorship, where the incumbent ruler’s government is propped up by indebted or power-hungry officials who owe their allegiance to the president — also known as the spoils system, which rewards political loyalists and punishes dissidents. To counteract this possibility, the Constitution was codified with the appointments clause to require all officers of the United States appointed by the president to be subject to the “advice and consent” of the Senate. The Supreme Court interpreted this clause — and reaffirmed in the landmark SCOTUS case of Buckley v. Valeo — to require Senate confirmation of any appointee exercising significant executive authority.

A Smooth-Sailing Pre-Game to the Trump Administration?

With Republicans flipping the open seat in West Virginia and defeating Democratic incumbents in Montana, Ohio, and Pennsylvania, the party has dominated the Senate, holding 53 out of 100 seats.

Nonetheless, while confirmation is expected to proceed smoothly for most nominees, some controversial selections are raising eyebrows amongst Capitol Hill’s lawmakers. In particular, Republicans on the Hill have warned the president-elect’s choice to lead the Pentagon, Pete Hegseth, who faces controversy over his past comments and reputational history, that the confirmation process is long and invasive. In fact, it would only require four Republicans siding with the Democrats to oppose Hegseth’s nomination to scupper his appointment.

The failure of former Rep. Matt Gaetz's (R-Fla.) nomination for U.S. Attorney General this week underscores that, despite a Republican majority in both chambers next year, the forthcoming Trump administration may encounter significant opposition in securing approval for contentious Cabinet appointments, signaling that its ambitions may not be fully realized without resistance.

Recess Appointments

Political participants have been kept wary by the potential of the exploitation of a constitutional loophole allowing Trump’s team to be assembled despite Senate pushbacks: recess appointments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

— Article II, Section 2, Clause 3 (U.S. Constitution)

During the constitutional debates of 1787, some delegates expressed concern that requiring Senate confirmation for appointments would necessitate the Senate being in constant session. This posed logistical challenges to officials of the 18th century, as the demands of governance required senators to balance their duties in their home states with their responsibilities as a legislative body, making frequent meetings impractical.

To address this issue, the Framers included a provision in the Constitution enabling presidents to make appointments during Senate recesses. These recess appointments would expire at the conclusion of the Senate’s next session.

Over time, presidents have leveraged this constitutional mechanism for political advantage, using it to temporarily appoint officials who might not otherwise secure Senate confirmation. While this practice has proven useful for advancing executive agendas, it has also generated partisan conflict and administrative instability.

The controversy surrounding recess appointments were escalated to the Supreme Court in 2014 when President Obama appointed three members to the National Labor Relations Board without Senate approval. The Court ruled that the president lacked the authority to make such appointments unless the Senate recess extended for at least 10 days. Consequently, the Senate began holding pro forma sessions — symbolic meetings in which no substantive business is conducted — to prevent recess appointments.

Despite the prior judicial scrutiny, President-elect Trump has criticised this tactic and urged the Senate to cease the practice, allowing him to exercise the recess appointment power. Incoming Senate Majority Leader John Thune has indicated that "all options are on the table," including the potential use of recess appointments, reflecting the ongoing tensions surrounding this constitutional provision.

The early days of the Trump administration's transition highlight the enduring complexities and tensions inherent in America’s constitutional framework. While the president-elect’s Republican majority in the Senate provides a strategic advantage for advancing his agenda, contentious nomination continue to demonstrate the potential for intra-party fractures and bipartisan resistance.

View the full list of announced and named staff nominations here: Tracking Trump’s Cabinet and Staff Nominations