Making An Exception to the Rule

Retired Marine Gen. James Mattis was nominated by President-elect Donald Trump to serve as the Secretary of Defense. USGLC photo.

The Senate Armed Services Committee will consider retired Marine Corps Gen. James Mattis’ nomination to be the next Secretary of Defense on Thursday. In the lead up to that hearing, the Congressional Research Service has outlined for Congress what it will have to do before his nomination can be confirmed.

President-elect Donald Trump tapped Mattis to lead the Defense Department in December 2016. Though highly respected throughout the military and on Capitol Hill, the pick is potentially problematic because federal law prohibits anyone who has not been separated from Active Duty for at least seven years from becoming Defense Secretary. Mattis retired from the military in 2013.

In CRS’s Jan. 5 report, international security analyst and report author Kathleen McInnis gives Congress three options for its upcoming 115th session:

1. Suspend the seven-year requirement

If Congress goes this route, it’ll be the second time it’s done so. The first time came just three years after the rule was first put in place, when President Harry Truman asked to appoint George Marshall as SecDef in 1950.

2. Eliminate or reduce the requirement

If Congress goes this route, it’ll be undermining the National Security Act of 1947, which emphasized the importance of civilian leadership of the military in an effort to prevent the military from becoming overly powerful. The 1947 law required a 10-year separation from Active Duty, but Congress changed it to seven years in 2008.

“The overall intention of the 1947 National Security Act was to ensure that the American instruments of national security and defense might be better prepared and organized in order to meet the challenges presented by the post-war period and the dawn of the Cold War,” wrote McInnis. “As such, in designing a new National Military Establishment (which would subsequently be redesignated as the Department of Defense), Congress sought to create greater unity of command while at the same time ensuring that the institution they were creating—and the individuals they would be empowering to lead it—would not threaten the principle of civilian control of the military.”

While McInnis maintains that few oppose Mattis as unqualified for the position or dangerous within it, it is the broader implication of what a civilian-military dichotomy should look like that is concerning to opponents.

Mattis’ nomination “has served as a catalyst for a more wide-ranging discussion on a key question he raises in his own book,” McInnis writes, “whether 40 years of an all-volunteer force—of which, the last 15 have seen continuous war—has significantly altered the ways in which the US military, civil society, and civilian leaders relate to each other.”

3. Ignore the requirement

Finally, McInnis writes, Congress can approve Mattis for the position and ignore the law. She says it is “unclear” what the legal implications of this are. Some people think the rule itself has its own legal implications.

McInnis noted that some have argued that particular section of the law itself is unconstitutional because “it restricts the ability of the President to nominate whomsoever they might wish to their cabinet.” On the other hand, she said, “Opponents maintain that the Constitution gives Congress considerable authority over military matters, and that the provision has been in statute for almost 70 years.”

Who Is Mattis

To read an extensive review of Mattis and his possible tenure as SecDef, check out John Tirpak’s Aperture column in the February issue of Air Force Magazine.