Why Trump and Elon Musk want key administration officials to be confirmed without a floor vote

President-elect Donald Trump and Tesla CEO Elon Musk want the second Trump administration to press its power to install their allies in power.

President-elect Donald Trump will return to the White House with Republicans in complete control of Washington. For Trump, Elon Musk, and other influential conservatives, this simply is not good enough.

The early reactions to Trump’s nominations of former Rep. Matt Gaetz of Florida as attorney general and Robert F. Kennedy Jr. as Health and Human Services secretary illustrate that even a GOP trifecta might not give Trump everything he wants.

Trump wants Republicans to help him use a special procedure called recess appointments that would allow him to install Cabinet appointees and even a Supreme Court justice without a single vote. In theory, Trump’s push for broad recess appointment power could allow him to disregard the process entirely — meaning that any more than 1,200 positions requiring Senate confirmation could be filled without even an FBI background check or a confirmation hearing.

“It’s just been made so explicit and used as a strategy in and of itself that even though former presidents made recess appointments, they didn’t say this part, and there wasn’t widespread fear about what it means and why they are using it now,” Casey Burgat, the director of the Legislative Affairs Program at George Washington University’s Graduate School of Political Management told B-17.

Like Trump, Musk is a big believer in flexing the recess appointment power.

The world’s richest man recently wrote on X that without them, it would be “impossible to enact the change demanded by the American people, which is utterly unacceptable.”

Sen. John Thune of South Dakota, who won the race to replace Sen. Mitch McConnell of Kentucky, has said “all options are on the table, including recess appointments. On Thursday, Thune stressed that Trump may still encounter obstacles if he goes that route.

“You have to have all Republicans vote to recess as well,” Thune told Fox News host Bret Baier. “The same Republicans that you mentioned that might have a problem voting for somebody under regular order might be the same Republicans that have a problem voting to put the Senate into recess.”

Why Trump wants this power.

Trump could get his choices confirmed with just 50 votes, thanks to Vice President-elect JD Vance’s tie-breaking power. With Republicans projected to hold 53 seats, Democrats can’t stop a nomination on their own. But they can force Republicans to grind it out.

In his push for recess appointment power, Trump argued it was about ensuring he could staff up in a timely manner.

According to the Center for Presidential Transition, it took President Trump twice as long on average to get his nominees approved during his first three years in office (115 days) than it did Ronald Reagan’s presidency (56.4) days. Through late November 2023, it took President Biden roughly 109.6 days on average. The center also found that while the Senate filibuster is part of the reason for delays, even complete control of Congress hasn’t sped things up.

Not everyone is convinced that time is Trump’s sole motivation, particularly when many of his early selections illustrate how much he will elevate controversial choices like Gaetz and Kennedy.

“From the president’s perspective, I suppose he would see this as a shortcut to take his favorite list of appointees and put them in for temporary appointments,” Sarah Binder, a senior fellow at Brookings, told B-17.

Trump can’t flex this power by himself.

As Thune said, the Senate would need to vote on adjournment. The Constitution also requires the House to approve the Senate breaking for over three days. A 2014 Supreme Court decision held that the Senate would need to recess for at least 10 days.

There’s even a way for Trump to avoid the House’s need to sign off on a lengthy break. Under Article II of the Constitution, Trump has the power to force an adjournment if the House and Senate are divided on what to do.

Time is the only true limit on recess appointments.

Officials installed via recess appointment can only serve until Congress’ next session. If Trump uses this power immediately upon taking office, officials or judges could only stay through the next Senate session, in January 2027.

Otherwise, there is virtually nothing Senate Democrats could do to stop the process. Adjournment votes can’t be meaningfully filibustered.

Recess appointments were created for a bygone-era.

Before World War II, presidents needed recess appointment power because the US Senate was out of session more often than lawmakers were in the nation’s capital. Presidents sometimes used their power to game the system, rushing nominees through who might have failed to get confirmed. In 2005, President George W. Bush bypassed the senate to appoint John Bolton as Ambassador to the United Nations over criticism from Senate Democrats.

In recent years, senators, including Republicans, have tried to thwart presidents from using their recess appointment power by holding “pro-forma” sessions where even just one senator can briefly convene and conclude business within minutes.

Not everyone is convinced this power grab is wise.

Trump’s biggest defender thus far is former White House counsel Don McGahn. In a Wall Street Journal op-ed on Tuesday, McGahn said that Trump needs the power because the Senate is too slow.

“Returning to the longstanding tradition of recess appointments would ensure that every elected president is able to staff the government with senior officials who share his policy vision,” McGahn wrote.

Some conservatives are skeptical. Ed Whelan, president of the Ethics and Public Policy Center, a conservative think tank, strongly opposes the idea.

“If you want to show that you’re fundamentally hostile to the constitutional separation of powers, trying to do a blanket bypass of Senate’s core advice-and-consent authority is a good way,” Whelan wrote on X.

The National Review wrote in a Wednesday editorial that Trump’s request is “wholly inappropriate within the American system of government and ought to be rejected with prejudice.”

Trump may only be in power for four years, but the reality of Washington is that if he follows Musk’s encouragement, he will set a standard Republicans will one day regret.

“The Senate works on precedent, and so whatever happened last is going to be the default for how it should happen going forward,” Burgat said, “and so if we know anything about politics and power grabs they are really hard to claw back and the next guy is gonna use it.”