Trump knows that there is a strong possibility that some of his nominees for his Cabinet are so unqualified that they may not be approved by the Republican majority of the Senate. The Senate typically advises and gives its consent to high-level appointments. But Trump is trying to exercise a relatively obscure provision of the Constitution to bypass the Senate.

Since we know that Trump never read the Constitution, it’s certain that one of his creative lawyers planted the idea.

Trump’s selection of Matt Gaetz, who faces allegations of sex-trafficking minors and drug abuse, as Attorney General, produced shock and disbelief among some Republicans. So has Tulsi Gabbard, whom Trump would elevate to the highest position in the American intelligence community. So has Robert Kennedy Jr., the anti-vaccine advocate, to head the Department of Health and Human Services. Medical and scientific experts are appalled. So has Trump’s choice of Pete Hegseth, FOX talk show host, to lead the department of Defense.

But Trump could give them “recess appointments” and have no scrutiny or review by Senators. And avoid the risk that some or all might be rejected.

We know that Trump doesn’t care about norms, traditions or laws that constrain his power. If the Senate abandoned its role to please Trump, he would be empowered to trample the rule of law at every turn. That is most definitely a threat to our democracy.

Senate Majority Leader John Thune says “all options are on the table,” and has neither accepted or refuted the scheme.

Edward Whelan, a prominent conservative lawyer, criticized Trump’s devious route in this op-ed in The Washington Post.

He wrote:

President-elect Donald Trump is threatening to turn the Constitution’s appointment process for Cabinet officers on its head. If what I’m hearing through the conservative legal grapevine is correct, he might resort to a cockamamie scheme that would require House Speaker Mike Johnson (R-Louisiana) to play a critical role. Johnson can and should immediately put an end to this scheme.

The Senate’s power to approve or reject a president’s nominees for Cabinet positions is a fundamental feature of the Constitution’s system of checks and balances. As Alexander Hamilton explained in the Federalist Papers, that power “would tend greatly to prevent the appointment of unfit characters,” including those “who had no other merit than that … of possessing the necessary insignificance and pliancy to render them the obsequious instruments of [the president’s] pleasure.” Almost as if Hamilton were describing Matt Gaetz, Trump’s pick for attorney general.

To be sure, the Constitution also provides a backup provision that allows the president to make recess appointments — “to fill up all Vacancies that may happen during the Recess of the Senate.” But as Hamilton put it, this “auxiliary method of appointment” is “nothing more than a supplement” to the “general mode of appointing officers of the United States” and is to used “in cases to which the general method was inadequate.”

It appears that the Trump team is working on a scheme to allow Trump to recess-appoint his Cabinet officers. This scheme would exploit an obscure and never-before-used provision of the Constitution (part of Article II, Section 3) stating that “in Case of Disagreement” between the houses of Congress, “with Respect to the Time of Adjournment,” the president “may adjourn them to such Time as he shall think proper.”

Under this scheme, it appears that the House would adopt a concurrent resolution that provided for the adjournment of both the House and the Senate. If the Senate didn’t adopt the resolution, Trump would purport to adjourn both houses for at least 10 days (and perhaps much longer). He would then use the resulting intrasession recess to appoint Gaetz and other Cabinet nominees.

Ten years ago, Supreme Court Justice Antonin Scalia labeled the president’s recess-appointment power an “anachronism” because “modern forms of communication and transportation” make the Senate always available to consider nominations. Along with three of his colleagues, Scalia also argued that the president’s power to make recess appointments is limited to intersession recesses and does not apply to the intrasession recess that the Trump scheme would concoct. The justice, who died in 2016, would be aghast at the notion that a president could create an intrasession recess for the purpose of bypassing the Senate approval process for nominations.

Mike Johnson should not be complicit in eviscerating the Senate’s advice-and-consent role. He should promptly make clear that the House will abide by its usual schedule of recesses and will not attempt to engineer a recess of the Senate.

Edward Whelan is a distinguished senior fellow of the Ethics and Public Policy Center, where he holds the Antonin Scalia chair in constitutional studies.