President-elect Donald J. Trump’s determination to crash over traditional governmental guardrails will present a fundamental test of whether the Republican-controlled Senate can maintain its constitutional role as an independent institution and a check on presidential power.
With Mr. Trump putting forward a raft of contentious prospective nominees and threatening to challenge congressional authority in other ways, Republicans who will hold the majority come January could find themselves in the precarious position of having to choose between standing up for their institution or bowing to a president dismissive of government norms.
The clearest and most immediate point of tension is likely to be Mr. Trump’s efforts to skip the Senate’s traditional confirmation process to install loyalists, including some with checkered backgrounds, in his cabinet. But the president-elect has also signaled he expects Republicans on Capitol Hill to accede to his wishes on policy, even if that means ceding Congress’s control over federal spending. Both are powers explicitly given to the legislative branch in the Constitution.
Lawmakers and analysts say allowing Mr. Trump to erode the Senate’s authority to pass judgment on nominees by sidestepping it through recess appointments or watered-down background checks could do permanent damage to the Senate and undermine the constitutional system.
“It is the central pillar in the checks-and-balances system,” said Ira Shapiro, a former longtime Senate staffer and author of three books on the institution. “There is nothing more central to the Senate’s role than the advice and consent authority.”
He and others were heartened by the Senate resistance that led to the withdrawal of former Representative Matt Gaetz as a candidate for attorney general. The election of Senator John Thune of South Dakota as the incoming majority leader despite a MAGA-driven campaign to reject him and install Senator Rick Scott of Florida, a die-hard Trump acolyte, was also seen as a sign that some Senate Republicans were not ready to capitulate to Mr. Trump.
But Mr. Thune’s election was by secret ballot, and Mr. Gaetz likely represented just the first, not the last, effort by Mr. Trump and his allies to bring the Senate to heel.
The prospect of a constitutional clash between Republican senators a president of their own party originated with Mr. Trump’s call for Senate leaders to embrace so-called recess appointments — a disputed practice of installing nominees when the Senate is on a break — to circumvent resistance and accelerate the approval of his candidates.
That idea immediately set off alarms with some Senate Republicans who see their advice and consent role as defined in Article II, Section 2 of the Constitution as one of their defining responsibilities. Several of them said they intended to do what they could to preserve it; Senator Mitch McConnell of Kentucky, the outgoing Republican leader, has signaled he may be one of them.
“The Senate has the constitutional obligation that many of us take very seriously, the advice and consent provisions,” Senator Susan Collins, Republican of Maine, said. She said that backing off that power “would be violating the intent of the founders. We would be ignoring specific language in the Constitution, and we would be undermining, in a profound way, the authority of the Senate and responsibility that we have.”
Others say Mr. Trump, through his electoral victory, earned the right to quickly install his choices at the helm of government departments. They say his plan to disrupt and overhaul agencies has led him to choose people who might have difficulty winning speedy confirmation through the conventional process. And they contend the Senate should consider alternatives if necessary to deliver what Americans voted for on Nov. 5.
“One of the ways we can do it is through recess appointments,” Mr. Scott said. “We’ve got to figure out how to get his nominations confirmed.”
Mr. Scott represents a faction of Senate Republicans with strong fealty to Mr. Trump and the MAGA agenda, a group consisting of some veteran conservatives along with newer members from the last two elections, including this year’s winners who rode Mr. Trump’s coattails. Ms. Collins represents a core of institutionalists that includes Senator Lisa Murkowski of Alaska and Mr. McConnell, who has been a strong critic of recess appointments.
“Senators can vote any way they want, but we all take an oath to uphold the Constitution that includes the advice and consent provisions,” Senator John Cornyn, Republican of Texas, said. “Some people may feel so strongly about this administration that they want to just vote ‘yes’ on all of them, and that’s their prerogative. That’s not my position.”
The divide among Senate Republicans over how far they will go in backing Mr. Trump has left Mr. Thune, who will take over on Jan. 3, walking a fine line. He has said that Mr. Trump has the right to choose who he wants for top positions, but Mr. Thune has also suggested he is committed to preserving the Senate’s role of vetting and voting on those tapped to fill the executive branch at the highest levels. Mr. Thune has said all options are open for doing so.
“I always believe that you defer to a president when it comes to the people they want in their cabinet to do a lot of these important jobs,” he said earlier this month on Fox News. “But obviously there is a process whereby we get down and scrub all these nominees and figure out, one, if they are qualified and are they people who are fit to hold these offices.”
In recent years, debates over the Senate’s singular role has focused on whether to preserve the filibuster, the 60-vote supermajority requirement for most legislation that is enshrined in the chamber’s rules. The threshold for nominations was reduced to simple majority in 2013, and some on the left have argued it should be weakened further to allow action on major legislation, such as a measure to preserve voting rights.
But Democrats warn that what Mr. Trump has in mind would do far more damage to the Senate.
“The filibuster is not in the Constitution,” said Senator Michael Bennet, Democrat of Colorado. “Advise and consent is, and the responsibilities we have as a legislative branch are constitutionally prescribed there. They are important and were written just for moments like this.”
Others caution that history has shown that once a change in Senate practice is allowed, it becomes permanent as the party out of power eventually returns to majority status and seeks the same advantage.
“When you open the barn door, it is really hard to get the horse back in,” said Sarah Binder, an expert on Senate procedure who teaches at George Washington University. She said that allowing Mr. Trump to skirt the traditional confirmation process could also weaken the Senate’s claim to its power to conduct oversight of federal agencies and hold the executive branch accountable.
The fight is over more than just whether Mr. Trump will try to dodge the Senate completely. Some Republicans are insisting that Mr. Trump’s picks undergo standard F.B.I. background checks before being voted on, a requirement that his transition has so far refused to agree to, and which advisers have suggested he should sidestep. Other Senate Republicans, embracing the president-elect’s skepticism of the F.B.I., say checks by the law enforcement agency aren’t crucial.
“I don’t think the American public cares who does the background checks,” Senator Bill Hagerty, Republican of Tennessee, said on ABC’s “This Week.” “What the American public cares about is to see the mandate that they voted in delivered upon.”
In an effort to hold the Senate in line, Mr. Trump’s allies have promised to exact political retribution for any who loom as obstacles to the new administration by inciting primary opposition when they next appear on the ballot. But Republicans resisted the blitz against Mr. Thune for leader and Ms. Murkowski, one of the Republicans most likely to break with Mr. Trump, said she would be willing to do so without fear of the political consequences if she found nominees objectionable.
“If I’m standing up because the individual lacks integrity, lacks moral character, then that’s on me,” she said. “I’m going to feel a heck of a lot better standing up for that than just being run over and cowed because that’s what everyone else is doing.”
As the new administration assumes control, both the House and Senate are likely to face other challenges to their fundamental authority, including assertions by some in Trump’s inner circle that the administration is not bound to spend money even if Congress appropriates it for a designated purpose.
But lawmakers expect that the handling of nominees in the early days of the Trump administration will be telling about the Senate’s future.
“If we allow recess appointments to fill the entire Trump cabinet without confirmation hearings, we take away one of the most important tools senators have,” Senator Chris Coons, Democrat of Delaware, said. “Whether or not the Senate can be the institution that our framers intended is going to be proven one way or the other here in the next two months.”
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