The appointment of Matt Gaetz, investigated for child abuse, as the new attorney general of the United States, or that of the anti-vaccine Robert F. Kennedy as head of the Department of Health, have become a test of loyalty for Republican senators. Donald Trump has secured the Republican majority in Congress, but the magnate wants to know if he will have a docile Legislature that will allow him to carry out his agenda. The result of the vote to ratify the charges will be a test of what limits Congress will place on the Trump Executive.
Although the elected president is the one who appoints the positions of his Government, it is the Senate that has to ratify them. The process is part of the “check and balance” system (check and balancein English) that the founding fathers of the United States established when they decided to separate the three powers, theoretically independent of each other, to achieve that balance.
Trump has achieved a perfect move for his presidency: he has the Executive, the Legislative and a Supreme Court (the fundamental body of the Judiciary) with a conservative majority.
The Senate’s response to the magnate’s desire to surround himself with loyal and controversial figures will also determine whether Americans will be able to count on a Legislature that truly fulfills that counterweight function or, otherwise, bows to the Executive. It is not only a test for the Legislature, but also for the Republican Party itself: Trump wants to confirm that this has become his party, within which there is no room to deviate from the line that he marks.
Senators critical of Gaetz
Gaetz’s appointment has been the one that has raised the most suspicions among Republican ranks. Beyond being part of the most Trumpist wing of congressmen, Washington legislators are aware of the investigation by the Congressional Ethics Committee into Gaetz for having had sexual relations with a 17-year-old girl.
The investigation began in April 2021, although it was suspended at the request of the Department of Justice, which took on the case and opened another for sex trafficking. According to American media, the case focused on determining whether Gaetz had had a sexual relationship with a 17-year-old girl and had paid her to travel with him. Justice closed the process in 2023 without criminal consequences and, then, the committee resumed its investigation.
In June, the committee released a preliminary report, a rarity in such proceedings, in which it said its investigation would include whether Gaetz engaged in sexual misconduct, used illicit drugs, accepted improper gifts and attempted to obstruct government investigations into his behavior. Gaetz has always rejected all accusations.
On Wednesday, shortly after his appointment as attorney general was announced, Gaetz resigned his congressional record, coinciding with the committee’s intention to publish the report on his case. Having resigned, the committee will no longer be able to publish the results of the investigation, because he is no longer a congressman. Although some lawmakers have been calling for it to be done based on precedent from 1987, when the committee released findings on Democratic Congressman Bill Boner after he left office. This Friday, in contrast, the President of the House of Representatives, Mike Johnson, announced that he will “strongly request” the committee not to publish the final report.
Gaetz has also earned the enmity of some of his party colleagues due to his belligerent nature and his willingness to attack anyone who does not fully align with Trump. While some of Trump’s most loyal senators have remained silent, others who are more critical have been against Gaetz’s election. The Alaska senator said of Gaetz: “I don’t think he’s a serious candidate.” Another senator, Susan Collins, told the newspaper The New York Times that she was sure that “there will be many questions at her hearing” to be elected prosecutor.
After Kennedy’s election, only a few favorable voices have been heard among congressmen. The new Senate majority leader, Republican John Thune, avoided stating whether he will support the ratification of the person chosen for the Department of Health, arguing that the procedure “is just beginning” and adding that there will be “an evaluation process” of the candidate.
Any of the positions that the Senate has to ratify – whether Gaetz, Kennedy or another appointed by Trump for his administration – is subject to the control of the Upper House, where the Republicans have a very slim majority: 53 senators of the 50 that represent the Senate. simple majority (plus the vote of the president of the Senate, who decides in the event of a tie).
Thune achieved the necessary support to become majority leader without having a marked Trumpist profile. In fact, who did have the support of the now president-elect, Florida Senator Rick Scott, lost in the first round. Thune is more moderate and institutionalist, but has also shown his commitment to carrying out Trump’s campaign promises.
Trump wants to bypass the Senate
For the approval process of the profiles proposed by the president, the Senate Oversight Committees can hold hearings until the day before the inauguration, that is, until January 19. Once the president is sworn in, nominees can be referred to the Senate or approved in quick votes. Historically, this was an expeditious process, but recently it has become more complicated. For example, when Trump began his first term in 2017, there were only two confirmed positions out of 26 appointments. When Biden arrived in 2021, he only had one approved position of 36 appointments.
Up to 1,200 administration positions are subject to Senate control.
If Trump does not want to take risks with wayward senators, there is an alternative that is included in the US Constitution: making the appointments in the middle of the recess of the Upper House. If the Republicans agreed and suspended the Senate sessions for a long period of time so that Trump could make his appointments, it would mean ceding the power they hold to the president.
The magnate already made it clear to the senators competing for the position of majority leader that they should be willing to support the appointments during a recess. “Any Republican senator seeking the coveted LEADERSHIP position in the US Senate must accept recess appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner,” Trump posted on social network X on Sunday. “Sometimes votes can take two years or more. This is what they did four years ago and we cannot allow it to happen again. We need positions filled IMMEDIATELY!”
The case Trump is referring to took place when the Senate prevented him from using the recess resource to replace then-Attorney General Jeff Sessions. Although some Republican senators have not rejected the idea entirely, Thune has been less willing to give up his role overseeing the Executive.
One of the most recent cases of appointments during a Senate recess has been under the Barack Obama Administration (2009-2017). When Obama used it to enforce National Labor Relations Board appointments, he was sued. The Supreme Court ruled that at least a ten-day recess was needed to justify an appointment during that period. But such long recesses have not been on the congressional calendar for a long time, so Trump would have to force it and the senators would bend to his will.
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