WASHINGTON — It’s one short phrase in the Constitutionmentioned in passing. But it’s already taking on outsized significance as newly elected President Donald Trump charts his return to office.
The withdrawal of Matt Gaetz as Trump’s The nominee for attorney general dramatically confirmed that the Senate still retains its “advice and consent” powers when it comes to vetting and installing a president’s Cabinet. Still, it may only be a brief reprieve from the intense battle to come as Senate Republicans try to maintain their constitutional role.
Trump has made his cabinet announcements at a rapid pace, often via social media, and often overwhelmed by GOP senators. In particular, Gaetz’s election on November 13 left Republicans shocked and temporarily stunned. His withdrawal just over a week later was just as sudden, leaving many grasping for words.
Within hours, Trump had moved on, announcement on social media that he had chosen another loyalist, former Florida Attorney General Pam Bondi, to lead the Justice Department. On weekends, Trump has filled in the rest of his cabinet selections.
The dizzying speed of the picks has gotten Trump’s second term off to an invigorating start, a show of force from a newly elected president who has made clear he plans to fill his administration with officials willing to upend Washington’s ways. His desire to fill the government with loyalists and exercise executive power in expansive ways seems certain to result in frequent clashes with Congress, even when Republicans are in power.
“From what I’m hearing from my Republican colleagues on everything from Secretary of Defense to other posts, it sounds like they are ready to replace Mr. Trump,” Sen. Tammy Duckworth, an Illinois Democrat, said 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 guideline is clear and does not change based on the personalities involved,” said Sen. Mike Rounds, a Republican from South Dakota. “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Gaetz’s nomination was withdrawn after Republican senators privately grew wary of a volatile confirmation hearing amid allegations that he had sex with an underage girl. According to one retiring Republican senator, Mike Braun of Indiana, as many as four to six Republican senators expressed reservations, although the number was certainly higher.
With Democrats willing to oppose Cabinet nominees they view as unqualified and extreme, Trump’s margin for error is small. Republicans are likely to have a 53-47 majority in the next Senate, so defections of just four Republicans would spell defeat for any candidate who does not have bipartisan support.
Other Cabinet picks also face a complicated path to confirmation. Trump’s transition team has so far failed to sign the required agreements that would allow the FBI to screen its personnel choices and send nominees to the Senate without the typical vetting that takes place beforehand.
So far, Trump’s nominees include the position of Secretary of Defense Piet Hegsetha Fox News personality accused of sexual assault, which he denies; for Secretary of Health and Human Services, Robert F. Kennedy, Jr.who also faced allegations of sexual misconduct and concerns over his opposition to vaccines; and for the National Intelligence Director, Tulsi Gabbarda former Democratic House member who has repeated Russian propaganda and talking points.
These choices are outside the Republican mainstream and a notable departure from when Trump first entered the White House and was mostly chosen from the ranks of Republican officials respected across Washington.
“The Constitution gives us a role in the workforce called ‘advice and consent,’” said Sen. Mitch McConnell, the outgoing Senate Republican leader who will remain in office next year. “My view is that this is exactly what will unfold here if these nominees are actually put forward, and we will treat them as if we have treated all the others with proper vetting.”
Still, Trump’s allies argue that senators should be prepared to confirm the Cabinet no matter who is elected.
“The president deserves to be able to put people in place who will do what he campaigned for, which is 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 single out his people to do that.”
After Gaetz’s withdrawal, Trump supporters circulated on social media and in activist circles the names of Republicans they believed were showing 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 give him clearance break agreements, a process which would suspend the Senate so that Trump could use a constitutional power to make appointments while the House is in recess. Sen. John Thune, who will take over as Senate majority leader in January, has kept that option on the table and said he would be inclined to exercise it if Democrats try to delay confirmations.
It would be unprecedented in modern times for the Senate to willingly step aside to allow the president to make top-level Cabinet appointments. Experts say this would amount to giving up the House’s constitutional power over cabinet choices.
“It has crystallized the choices for Republicans 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 powers?”
Yet some Trump allies have also discussed a scenario in which the Republican-controlled House could vote to adjourn Congress. Even if the Senate were to refuse to adjourn as well, that could theoretically create a “disagreement” between the two chambers, allowing the president to invoke constitutional authority to adjourn Congress until a time he believes is “appropriate.”
Yet that constitutional provision has never been tried, and Binder maintained that it would still be within the power of Senate leaders to immediately reconvene the House. But it would also be a new test for the Senators.
“A constitutional system doesn’t work unless those in the institutions stand up and fight to preserve their constitutional rights to advice and consent,” Binder said.
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Associated Press writers Lisa Mascaro and Mary Clare Jalonick contributed.