Resistance Is Futile

The season of creative collaboration is upon us

Donald Trump, a former reality TV star, casino mogul and steak pitchman, is president-elect of the United States. He has already served as president once before. Despite his manifest lack of any traditional qualifications for the office, he has been and will again be invested with the supreme executive power of our constitution, because he won a popularity contest. This is the system of government called “democracy,” and as Winston Churchill famously quipped, it’s the worst such system—except for all the others.

We’re now seeing that same principle being applied to Trump’s cabinet nominations. Like Trump himself, Pete Hegseth, Tulsi Gabbard, Matt Gaetz and Robert F. Kennedy, Jr. all lack the traditional qualifications for the positions to which Trump plans to appoint them (Secretary of Defense, Director of National Intelligence, Attorney General and Secretary of Health and Human Services respectively). They haven’t been picked for their expertise or their experience, for being the natural aristocrats of our small-r republic. They have been picked to carry out the will of man who picked them, who was picked to carry out the will of the people, and they have been picked because he believes they will carry out his will.

And will Trump get his will? The simple answer is yes. Trump has steamrolled everyone before him, and he will continue to do so now. The Senate was too cowardly to convict him after he incited a mob to invade their chambers and threaten them with violence; they will never muster the will to stand up to him now.

The more sophisticated answer is: it depends. The Constitution empowers the Senate to advise and consent on cabinet appointments, and the Senate has rejected other outlandish appointments that Trump has attempted to make in the past. As Josh Barro helpfully reminds us in his latest post, neither Herman Cain nor Steve Moore was ever appointed to the Federal Reserve. Moreover, Trump himself may not actually care about losing some of these appointments. RFK, Jr., in particular, was likely appointed more as a reward for his support than because Trump has a deep desire to make it easier to drink raw milk. It’s a classic Trump negotiating strategy to demand something absolutely outlandish and then settle for much less.

But I think the galaxy-brained answer is: probably yes. Here’s why.

Every one of these nominees represents something Trump ran on, and their lack of traditional qualifications is central to that representation. Hegseth isn’t just an “America First” hawk; he’s someone unconnected to the Pentagon bureaucracy or the defense industrial complex and who’s been critical of the top brass. Gabbard isn’t just an anti-interventionist; she’s someone completely outside the intelligence community’s orbit, and has been elaborately critical of that community. Matt Gaetz is himself a target of law enforcement who has echoed Trump’s contention that the agencies in charge thereof have been politically corrupted, and RFK, Jr. has built his entire persona on opposition to the current public health system for being a tool of big pharma and big ag.

Opposition to any of these nominations, then, can be readily spun by Trump as an attempt to protect the corrupt status quo and prevent him from “draining the swamp.” And he just won a decisive election against a candidate who ran explicitly as a defender of that status quo.

Does that mean the Senate is obliged to roll over? Arguably not. As Barro describes, a mere trio of Republican senators in opposition would be enough to sink any given nominee, and several of them have sufficient independent popularity to do so. Lisa Murkowski of Alaska regularly wins against Republican opponents thanks to ranked-choice voting; Susan Collins represents Maine, a state that Hillary Clinton, Joe Biden and Kamala Harris all won; and multiple other senators have proved willing to reject Trump’s nominees at various points in the past (and one of them—Bill Cassidy of Louisiana—was even willing to vote to convict in Trump’s second impeachment trial).

But suppose they vote down Matt Gaetz, and Trump appointed Ken Paxton intead? Or Kris Kobach? Or someone else with more traditional qualifications but who the same senators would be loathe to confirm? If the primary qualifications from Trump’s perspective are a willingness to blow up the system and absolute loyalty to Trump himself, then ultimately the Senate’s opposition wouldn’t be about qualifications, but about that orientation. How confident are even the most independent-minded GOP senators that they would win a fight on those terms? That they could win that fight over and over and over, no matter how many times Trump put up someone unacceptable?

I don’t think any of them could. It’s one thing to torpedo a single nominee in favor of someone broadly similar but better-qualified. It’s quite another to stand athwart an elected president yelling: “stop!” Any Republican senator who did that should expect it to be the end of their career.

But maybe a small group of senators would be willing to end their careers to stop Trump. So suppose they were willing to walk the plank. Trump has already declared that he expects Congress to allow him to make recess appointments, bypassing the need for hearings to say nothing of getting the Senate’s approval. The minimalist, quite reasonable version of this demand is that Trump wants Congress to return to its old practice of periodically going into recess rather than officially staying in session continuously, a practice initiated in order to stymie the president from ever making recess appointments. On this understanding, if Congress were to hold hearings and votes expeditiously on his nominees, that would be perfectly satisfactory. But if Trump’s picks were to be roundly and repeatedly rejected, it’s reasonable to expect Trump’s demand to become considerably more pointed.

In that case, the drama would move to the House of Representatives, where Republicans will continue to hold a very thin majority. Mike Johnson was just renominated as Speaker in a unanimous voice vote, but that doesn’t mean he is invulnerable to challenge. If Trump asks Congress to adjourn in order to allow him to make recess appointments, and Johnson refuses, he should expect a rebellion by the Freedom Caucus—and would likely only be able to hold on with the help of Democratic votes, support which would likely be expensive enough to cost him his Speakership anyway not far down the road. That’s a powerful reason for him to agree to an adjournment. If he does so, though, then the Senate has to go along or Trump can use his power under Article II, Section 3 to prorogue Congress in the event of a disagreement between the two houses. And if the president is the one who declares the adjournment, then Congress doesn’t come back into session until the president calls for it to do so. That would put considerably more power in Trump’s hand than would simply agreeing to an adjournment—or, for that matter, confirming his nominees.

I think everyone in Congress understands all of the above, which is why I don’t think it’ll come to that. It’s possible one or more of Trump’s nominees will get rejected—maybe Gabbard’s ties to the Hindu far right, or RFK, Jr.’s pro-abortion-rights stance, or Matt Gaetz’s sheer loathsomeness will doom them. But if they are defeated, I would expect their replacements to be substantively similar, and for them to be approved expeditiously, such that the practical effect of opposition would be for the Senate to save face rather than to truly change the course Trump has set on. The only way that calculus would change is if the people themselves turned against that course, such that the political incentives of their representatives shifted in turn.

The time for resistance has ended. Now we’re in the season of creative collaboration. I suspect we’re going to see a lot more like the below in the months to come, until such time as the political winds have shifted decisively in a new direction.