Some brilliant Trump guy informed me that elections have consequences when my reaction to the announcement that Trump would nominate Matt Gaetz to be Attorney General was “no.” And he wasn’t wrong that elections have consequences, but that doesn’t mean anything goes. The glory day of Marco Rubio as Secretary of State was over.

Whether it’s Russian envoy Tulsi Gabbard as DNI or Foxy Pete Hegeseth at Defense, Trump may have overplayed his hand to those who only pretend they like him and that he’s not an ignoramus.

But when it came to Matt Gaetz, however, the audible gasp in the room was a stark reminder that he is one of, if not the most, despised vulgarians in Congress, atop being legally and ethically compromised and otherwise wholly unqualified, other than his willingness to drop and suck upon Trump’s command. Of course, that isn’t usually considered a qualification for AG.

So how, one might wonder, will someone so hated receive the consent of the Senate to serve as AG (as opposed to serve time)? This is where the recess appointments scheme comes into play. At NRO (the “NR” stands for National Review, that radical commie rag), Ed Whelan has been working out the details of this scheme to circumvent the Senate’s advice and consent role under the Constitution in order to sneak Gaetz in through the backdoor, where he’s no doubt most comfortable, when he could never get in through the front.

The plan would require the complicity of the Speaker of the House in eviscerating the Senate’s advice-and-consent role.

Here’s a sketch of what I understand to be the plan, but I could easily be wrong on some of the details:

The Constitution provides that “[n]either House [of Congress], during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” (Article I, Section 5, clause 4.) Article II, section 3 provides that “in Case of Disagreement between [the Houses], with Respect to the Time of Adjournment, [the president] may adjourn them to such Time as he shall think proper.”

Step 1: The House adopts a concurrent resolution that provides for the adjournment of both the House and the Senate. (The House rules expressly state that a concurrent resolution “may provide for the adjournment of … both Houses.”)

Step 2: The Senate either adopts the concurrent resolution, in which case it adjourns (jump to Step 4), or it rejects the concurrent resolution (proceed to Step 3).

Step 3: Trump adjourns both the House and the Senate for at least ten days (and perhaps for much longer).

Step 4: Trump recess-appoints his Cabinet officers.

For the reasons I have previously given, I think that this plan is an outrageous attack on the Senate’s core duty to approve or reject the president’s nominations of his top officials.

When the Senate resoundingly rejected Florida Trump fan Rick Scott as majority leader, there were thoughts that Senator John Thune might be the adult in the room who would temper the worst impulses of a president who cared only about loyalty to Darth Cheeto without regard to  country or qualifications. But then, Thune isn’t exactly a moderate either, and expressed his openness to the scheme of recess appointments to undermine the Senate’s constitutional role. Then again, that was before Trump announced Gaetz as AG, so perhaps it’s a line Thune won’t cross.

Josh Blackman has taken Whelan’s analysis a step further, questioning whether the scheme could legally succeed by adopting Justice Scalia’s concurrence in NLRB v. Noel Canning over Justice Breyer’s majority opinion.

Under Scalia’s opinion, the President could only fill a vacancy that arises during the recess of the Senate. Trump’s plan would only be feasible if these cabinet positions become vacant during the recess of the Senate. Presumably, the holdover Biden cabinet officials will be long gone on January 20. And, on January 20, I suspect the President will use the Vacancies Reform Act to detail friendly people already in the federal government to serve as acting cabinet officials. What if one of them were to resign during the presidentially-induced recess? That is, on January 21, Trump adjourns Congress, and all acting cabinet officials resign. Would those vacancies have arisen during the recess of the Senate? Or, would the relevant starting point be when the last-confirmed official resigned? I don’t know how the Recess Appointments Clause, as understood by Scalia, interacts with the Vacancies Reform Act. I doubt anyone has given this issue much thought.

A second question Josh raises is whether a recess called in the midst of a congressional session is an inter- or intra-session recess, the former allowing recess appointments whereas the latter would not.

In his effort to get his nominees seated without either the ugly scenario of being questioned by committee or worse, the rejection by a Republican majority Senate because Trump’s appointments are so god-awful bad that even his team can’t stomach his choices, the Senate will be treading on virgin territory that puts into play the fundamental question of why the Senate has advice and consent duty at all. Forget silly old notions like the filibuster, and consider that this could spell the death of the Senate’s constitutional duty to confirm presidential appointments at all.

But then, Trump has never shied away from hare-brained schemes to circumvent the normal constitutional guardrails in order to achieve his ends, no matter how stunningly awful they may be. And elections have consequences, even if nobody voted for Trump because they desperately wanted Matt Gaetz as the Attorney General of the United States of America.