Trump can only afford three defections within the Senate Republican conference to get his picks confirmed with the GOP’s 53-seat majority in the 119th Congress. 

Four opposed Republican senators would be enough to sink any of his nominees, and two centrists, Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK), have already expressed reservations about Gaetz, who has recently faced investigations into allegations of sexual misconduct. 

The Federal Vacancies Reform Act of 1998

Some of Trump’s inner circle claim the incoming president could push through Gaetz’s nomination using the Federal Vacancies Reform Act of 1998, which allows for temporary appointments. 

A Government Accountability Office explanation of the act reads: “If no one has been nominated to the position, an acting officer may serve in the position for no longer than 210 days beginning on the date of the vacancy. However, for any vacant positions that exist during the 60-day period beginning on a transitional Presidential inauguration day, an acting officer may serve in the position for no longer than 300 days beginning on the inauguration day or the date of the vacancy.”

“President Trump Tells Senate Majority Leader Thune That If Matt Gaetz Is Not Confirmed As AG He Will Use The Federal Vacancies Reform Act To Appoint Him” @JeffClarkUS

From Steve Bannon War Room @Bannons_WarRoom pic.twitter.com/tJV0zXA5nC

— Donald J. Trump Posts From His Truth Social (@TrumpDailyPosts) November 18, 2024

Philip Wallach, a senior fellow at the center-right American Enterprise Institute, said both Trump and President Joe Biden have successfully been able to assert their control over certain executive agencies without having to go through the congressional approval process, but with a big caveat.

“It tends to work more for the lower-down positions rather than the top-level Cabinet positions,” Wallach said.

In 2018, Trump utilized the provision to select Matthew Whitaker as a temporary replacement for then-Attorney General Jeff Sessions, who resigned at the president’s request after his recusal from oversight of special counsel Robert Mueller’s investigation into Russian election meddling. Whitaker had served as Sessions’s chief of staff and was qualified since he had worked at the Justice Department for 90 consecutive days.

However, experts do not believe Trump could use the law with any of the recent nominations.

“There are three categories of folks that can serve in a temporary capacity of a vacant position,” said Casey Burgat, an assistant professor and the Legislative Affairs Program director at George Washington University. 

“Someone at the agency at a senior level, someone who has already been confirmed by the Senate for a different role, which obviously does not include Gaetz,” Burgat said.

“There’s some ambiguity in that language, but I think most people agree that it’s someone at the agency who’s assisted the vacant position,” Burgat said. “So, Gaetz obviously does not qualify for that. I don’t know of a way that would be applicable to Gaetz.”

Burgat said there could be workarounds to get Gaetz into a position inside the Department of Justice so that he could qualify as a “first assistant,” but there would likely be legal challenges. 

“It just seems to me like this is a full-on Hail Mary where they’re going to make people defend the process and the act,” he said. “It looks like they are working on trying to find any way to get around the Senate, knowing that’s going to be a tough confirmation the typical, traditional way.”

Recess appointments 

Trump, who made a series of controversial Cabinet nominations last week, called for Republicans to select a majority leader who would allow him to make temporary appointments while the Senate is in recess so Democrats are unable to slow down the confirmation process.  

Recess appointments are a constitutional power used regularly by past presidents and “provide an alternative method of appointment that would allow the filling of vacancies ‘without delay’ during periods of Senate absence,” according to the nonpartisan Congressional Research Service.

Now that Sen. John Thune (R-SD) has been elected as the next leader of the Senate GOP,  some members appear to be more skeptical about fulfilling Trump’s request if it would undercut the decision-making process due to disapproval from fellow Republicans rather than Democrats. 

“I think this was an entirely different situation on Tuesday during the leadership elections,” said a Republican adviser to a high-ranking senator, speaking on the condition of anonymity. “I don’t believe Thune … would have made this promise if it meant overruling members of [his] own conference.”

Senate Minority Leader Mitch McConnell (R-KY) reportedly indicated he opposed recess appointments at a gathering with Trump’s team on Sunday. He declined to elaborate further on Monday when questioned by reporters on Capitol Hill.

Asked Leader McConnell if he would support adjourning the Senate to allow Trump to make recess appointments.

“Too early for interviews in the hall,” he joked.

— Allison Pecorin (@AllisonMPecorin) November 18, 2024

For years, Republicans and Democrats have utilized pro forma sessions to block presidents from making recess appointments. When the Senate adjourns for longer recesses or district work periods, a senator goes into the chamber every couple of days to preside over an empty chamber. 

For a recess appointment to be made, the Senate must be adjourned for at least 10 days. But the House and Senate require one another’s approval to adjourn for more than three days. That means the House could vote to adjourn for more than three days, the Senate declines to agree, and Trump could, theoretically, undertake the precedent-setting move of using his constitutional authority to resolve the conflict by forcing the Senate to adjourn also. 

“Gaetz is so disliked by members of his own party on both sides of the aisle, I just don’t see enough Republicans in either chamber who would be willing to allow him to get installed,” the same GOP adviser said.

Wallach said attempting to bypass Congress with controversial nominations in the long run would not serve Trump well.

“A lot of Trump’s agenda is really, you know, hard to pursue with passing laws, even though he’s styled himself as someone blowing up the swamp,” he explained. 

“If you want to do partisan legislating, you have to work really hard to keep all the Republicans happy, and just acting like they all have to come along with you is a good way of alienating at least a handful of them,” he said.