In the nine days following his win in the 2024 United States presidential election, President-elect Donald Trump has made appointments for some key positions in his administration.
With President-elect Trump’s Republican party holding majority control in the Senate, the House and the Supreme Court, many are wondering whether or not the appointments will potentially face any pushback.
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KPRC 2’s Bill Spencer and Lisa Hernandez spoke to David Froomkin, a law professor at the University of Houston.
Lisa Hernandez, KPRC 2: President-elect Trump has been announcing his nominees. We just heard RFK Jr., in fact, has been tapped to lead Health and Human Services. Matt Gaetz has been nominated for Attorney General.
We know he was embroiled in a sex trafficking investigation under Donald Trump’s DOJ and has been under scrutiny by the House Ethics Committee for alleged sexual misconduct. We should note he’s denied all claims. What we’re hearing about the possibility of recess appointments which would bypass Senate hearings and a vote to confirm—can that happen? And do you think the new majority leader will allow that?
David Froomkin, University of Houston: Ordinarily, of course, all Cabinet appointments require Senate confirmation. Under the Constitution, the president can only make recess appointments without Senate confirmation when the Senate is, in fact, in recess. The Supreme Court has made it absolutely clear that the Senate has the power to decide when it is in recess. So, the question is whether the Senate will accede to Trump’s demand, which would be really shocking—essentially, for the Senate to preemptively abandon its most important constitutional function in confirming Cabinet appointments. But we’ll have to see.
I think the more important question to ask is why Trump might want to avoid the confirmation process? I think there are essentially three possible reasons. One, the nominees might be too extreme or too off-putting to be confirmed by the Senate; two, he might want to avoid public scrutiny, especially if a nominee has skeletons in their closet; or three, Trump has said that he wants to be a “dictator” and simply resents the idea that there are checks on his power.
Bill Spencer, KPRC 2: Donald Trump has also tapped Elon Musk and Vivek Ramaswamy to head up a brand-new department: the Department of Government Efficiency that is meant to cut government waste. Can the president unilaterally create a new department like that?
David Froomkin, University of Houston: Absolutely not. Under the Constitution, the president does not have the unilateral power to create an executive department. Departments can only be created by law, which means by Congress. The president can only unilaterally create an office within the White House, which would have only an advisory function. So, if Trump were to try to give the new office any power beyond a strictly advisory role, it would be flouting the law and the Constitution.
Bill Spencer, KPRC 2: With Musk’s existing government contracts, would Elon Musk’s role pose a conflict of interest should he be named to the administration?
David Froomkin, University of Houston: If the office is, in fact, a purely advisory role, then I think the conflict doesn’t really matter—anyone has the right to give their opinion. On the other hand, if the process is designed to give power in a way that bypasses Senate confirmation and disclosures, that would be very disturbing.
Lisa Hernandez, KPRC 2: Trump has promised mass deportations. Stephen Miller, his top immigration adviser, said that in 2025 we might even see denaturalization for those who have been naturalized. Is that even a legally valid argument to make?
David Froomkin, University of Houston: I don’t think there’s any legal basis for it. For one thing, the Constitution guarantees citizenship to anyone born in the United States. So, to the extent that we’re talking instead about people who have been naturalized, then we’re dealing with federal immigration law, which permits denaturalization only in very rare circumstances. It’s also important to note that mass denaturalization would be a clear violation of international human rights law.
But I think that’s not even the extent of the problem we’re looking at. Trump has said that he plans to enlist the military in the process of rounding up and deporting immigrants in the United States. But the Posse Comitatus Act, a federal law, bars members of the military from participating in domestic law enforcement activities. So I fear that we are entering a new era in which government officials will increasingly disobey the law.
Watch the full interview in the video above.
