Can Trump pass Congress if Senate Republicans don’t push for Cabinet picks?

One of President Donald Trump’s first moves after winning another four years in the White House was to call for a “relaxation appointment.”

Now it is clear why.

His cabinet picks of Fox News host Pete Hegseth for defense secretary and former congresswoman Tulsi Gabbard for director of national intelligence raised eyebrows and alarm. But the choice of now former GOP Rep. Matt Gaetz for the attorney general was asked to hear gasps from House Republicans huddled behind closed doors and later the general bewilderment of some GOP senators.

ABC News Washington Correspondent Jonathan Karl reports that Trump is likely to advance, seeing the nomination as a critical loyalty test for the new Republican leadership on Capitol Hill.

If that loyalty fails, Karl reports, Trump’s team is looking for a nuclear option to bypass Congress entirely: have lawmakers suspend, or force them to suspend, so they can install the option without the “advice and consent” confirmation process in the Senate — the key legislative power also called in the Constitution.

It would be a maneuver that fits well with Trump’s push for unchecked executive power in his second term, which Karl called part of his “dictatorship on Day 1” strategy.

“This kind of contrivance, I think, is unprecedented,” said Harry Litman, a former U.S. attorney and deputy assistant attorney general who teaches constitutional law.

Experts who spoke to ABC News could not recall a time when the Senate and House agreed to a recess just to allow the president to place a controversial figure in a powerful government position.

Newly elected Senate Majority Leader John Thune, who will take control of the chamber in January, said Republicans would “explore all options” when asked by ABC News Senior Congressional Correspondent Rachel Scott if they would continue with recess appointments.

Thune expressed his desire for the Senate to hold confirmation hearings, which could prove to be an ugly battle for someone like Gaetz. Republican Senator Kevin Cramer told ABC Scott that Gaetz would not be confirmed if the vote took place today.

If the nominee faces insurmountable headwinds, Trump can ask both chambers to adjourn to make the appointment itself. But what happens if the House and Senate don’t see a recess?

Article II Section 3 of the Constitution provides for the president to suspend Congress in the event of “disagreement.”

The provision reads, in part: “On exceptional occasions … in the case of Disagreement … as to the Time of Adjournment, he may adjourn to such Time as he thinks fit.”

That has never been done, said Josh Chafetz, a constitutional law professor at Georgetown University.

If Trump were to go that route, he would likely face legal challenges and possibly even the Supreme Court.

In 2014, the Supreme Court weighed in on the issue of recess appointments after then-President Barack Obama used a short recess in congressional business to place officials on the National Labor Relations Board.

The decision in the NLRB against Noel Canning finally gave the president the power to fill vacancies in recesses longer than 10 days.

But Justice Anton Scalia, in a concurring opinion, disputed the general guidelines established by the justices.

“The Court’s decision transformed the recess appointment power from a tool carefully designed to fill a narrow and specific need into a weapon that future Presidents will wield against the incoming Senate,” Scalia wrote.

Joining the agreement were three conservative justices still sitting on the bench: Chief Justice John Roberts, Justice Samuel Alito and Justice Clarence Thomas.

“For any strategy that isn’t tried as Trump envisions it, there will be an uncertain outcome in the Supreme Court,” Litman said.

But Chafetz noted that the Supreme Court has now taken a broad view of the president’s authority, as it did earlier this year on the immunity ruling.

“This Supreme Court is one of those invested in executive power,” Chafetz said. “It’s also a Supreme Court that’s been very friendly to Trump in general, so I’d be surprised if they stepped in to block a recess appointment under those circumstances.”

Respite appointments have been used by past presidents to fill administration roles, including more than 100 times by Bill Clinton and George W. Bush. Bush and Obama made recess appointments at the “representative” level but not for Cabinet positions.

None of the recess appointments were made by the previous Trump administration or the Biden administration.

During his first term, Trump floated the idea when he expressed frustration with Senate Democrats who opposed some of his nominees, but he never acted on it.

This time, they’ll try to do it while Republicans have the trifecta: control of the White House, the Senate and the House.

“It’s his own party that’s rebelling and balking,” Litman said, “and if he can get through that, that’s a bigger power than him.”

Chafetz called it a “dominance play” from Trump.

“He wants to show that he can make the Senate humiliate himself, doesn’t he?” said. “He wants the entire Republican conference in the Senate to do this thing that shows their loyalty to him that they not only act to confirm the nomination, but actually delay to give up their power and allow him to do it unilaterally.”