In the days following former president Trump’s election win over Kamala Harris, the president-elect has begun to name his picks to fill the positions in the Cabinet.
With less than a week before the new Congress — both the House of Representatives and U.S. Senate — is sworn in, it’s important to know just how the process of confirming cabinet picks works and what is not possible under the U.S. Constitution.
What Is the President’s Cabinet?
The Cabinet is a part of the Executive Branch, which is one of the three main branches of the federal government. Established under Article II, Section II of the U.S. Constitution, the Cabinet is to “advise the President on any subject he may require relating to the duties of each member’s respective office,” according to the White House’s official website.
The Cabinet comprises 15 departments: agriculture, commerce, defense, education, energy, health and human services, homeland security, housing and urban development, the interior, justice, labor, state, transportation, treasury and veteran affairs.
The heads of each of these departments serve as the closest confidants to the President, according to the White House’s website.
“In addition to running major federal agencies, they play an important role in the Presidential line of succession,” according to the White House. “After the Vice President, Speaker of the House, and Senate President pro tempore, the line of succession continues with the Cabinet offices in the order in which the departments were created.”
How Is the Cabinet Selected?
The Cabinet is handpicked by the president-elect, but once the picks are named, a thorough process must be followed to ensure those who are named as department heads are fit to serve in those roles.
The Cabinet, in addition to over 1,000 positions picked by the president, must be confirmed by the U.S. Senate, per the U.S. Constitution. Each person the president chooses must undergo an intense background check process through the Federal Bureau of Investigation (FBI) before they can proceed with the confirmation process. The FBI clarified which members are subject to vetting: presidential appointees, White House staff, positions requiring Senate confirmation and other national security positions requiring security clearance.
The FBI “does not adjudicate or render an opinion on the results of the background investigation,” when they are then sent to the office of the president-elect or the office of White House Counsel for their use.
Once that is complete, nominees must fill out a questionnaire tailored to their specific seat and submit the completed document, along with financial disclosure forms, to the Senate. Then, each nominee will testify before a Senate committee where they will answer questions about their qualifications — much like a job interview.
These hearings can be contentious, as both political parties are able to question nominees about their backgrounds and plans for the post. After the initial hearing, the committee votes on the nomination. If a candidate is approved, the full Senate then votes on the nominee.
Historically, the upper chamber has been able to confirm appointments without much debate in the past, but “political and partisan conflicts between the president and senators have at times produced dramatic fights over cabinet nominees and led to their ultimate withdrawal or rejection,” the Senate’s historical website claims.
Where Are We Now?
This round of confirmations is different from the first Trump administration, as now the president-elect appears to have created more enemies on Capitol Hill both outside and in his political party. The return of Trump has resulted in the rise of those ignorant to the process interjecting, disavowing the system established by the Founding Fathers and searching for ways to circumvent the democratic processes laid out in the Constitution.
The vetting and Senate confirmation processes serve as a “check and balance” to the Executive Branch. Remember that concept from civics and economics class in high school? The one ensuring not one branch of the federal government is overpowering another?
To Trump and his crew, these checks and balances aren’t a cornerstone in the foundation of American Democracy — they’re an obstacle in the way of achieving their vision of a traditional, conservative America where differing opinions are squashed and silenced.
Trump has mentioned recess appointments on multiple occasions since his election. Recess appointments are one of the only exceptions to the Senate confirmation rule. When Congress is in recess – aka it’s not in session for a duration of time – the president can make appointments temporarily without congressional approval or vetting.
This process was established at a time when Congress met less often and has been deemed by a majority of legal experts as outdated and unnecessary with how often the legislative body meets. Recess appointments are also meant to be temporary and expire at the end of a congressional session – so at most, one year.
Trump has continuously said the Senate “must agree” to recess appointments, otherwise “we will not be able to get people confirmed in a timely manner.” However, it’s normal for cabinet confirmations to take time after inauguration, sometimes months at a time.
However, Trump isn’t the first president to utilize recess appointments to skirt the slow down brought by partisan politics. According to the Congressional Research Service (CRS), George W. Bush made 171 recess appointments, Bill Clinton made 139 and Barack Obama made at least 32. But in 2014, the Supreme Court essentially put an end to these types of appointments when it ruled against Obama and some of his appointments, deeming them unconstitutional.
Trump’s attempts to pressure the Senate to agree to recess for him to make appointments without vetting or both political parties doing their due diligence is a direct attack on the foundation of America’s democratic processes.
