Early Sunday morning, the president-elect took to Twitter to fuel speculation that he will select retired Marine Gen. James Mattis as the next Secretary of Defense:
General James "Mad Dog" Mattis, who is being considered for Secretary of Defense, was very impressive yesterday. A true General's General!
— Donald J. Trump (@realDonaldTrump) November 20, 2016
Articles assessing the Mattis prospect have been numerous and mostly quite positive (see, for example, Eli Lake’s roundup of positive reviews from across the political spectrum). As many of those same articles also note, however, there is a catch: 10 U.S. Code section 113(a), which provides in relevant part that a “person may not be appointed as Secretary of Defense within seven years after relief from active duty as a commissioned officer of a regular component of an armed force.” (The National Security Act of 1947 originated this limitation, and from 1947 to 2008 the waiting period actually lasted ten years rather than just seven). Because Mattis retired in May 2013, the statute plainly bars him from serving as secretary of defense until May 2020. So why still talk him up as a prospect? There is a good answer, but it is a bit more complicated than some of the coverage has suggested.
Many of the Mattis-tracking articles note this problem, but suggest that it can be overcome with a “waiver” from Congress. That’s accurate at bottom, but “waiver” sure is an awkward way to describe what actually would have to happen: For Mattis to be secretary of defense, it will require a new statute, one that either carves out a case-specific exemption for him or repeals this aspect of section 113(a) altogether. That is, either the lame-duck Congress and President Obama will have to act affirmatively to make this happen, or else it will have to wait till the new Congress and President Trump can get to it post-inauguration.
It certainly can be done. It has been done, in fact, once before. In September 1950, President Truman wanted to appoint George Marshall as secretary of defense despite the ban and went to Congress to get a statute that would override the National Security Act just in this instance. In the end, he got it but not without a bit of anxiety regarding the principle of civilian control of the military. When Congress did finally pass the bill, it included a proviso to the effect that
It is hereby expressed as the intent of the Congress that the authority granted by this Act is not to be construed as approval by Congress of continuing appointments of military men to the office of Secretary of Defense in the future. It is hereby expressed as the sense of the Congress that after General Marshall leaves the office of Secretary of Defense, no additional appointments of military men to that office shall be approved.
Congress of course has no power to bind itself in the future in that way. Today’s Congress is as free to follow the Marshall precedent in favor of Gen. Mattis as was the 1950 Congress (and I would not be disappointed to see him as secretary of defense). It’s a question of policy and politics, not authority. The important point, though, is that the “waiver” was no simple snap of the fingers. It requires a full-fledged statute, and likely will spur serious debate with respect to civil-military relations.
One hopes the transition team is in conversation with Majority Leader McConnell and Speaker Ryan on this subject, and if they want to get this done sooner rather than later, they will need to talk with President Obama too. In the meantime, in case it helps, here is the complete original text of the Marshall statute:
To authorize the President to appoint General of the Army George C . Marshall to the office of Secretary of Defense.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, notwithstanding the provisions of section 1222 of the Revised Statutes (U. S. C., title 10, sec. 576), or the proviso contained in section 202 (a) of the National Security Act of 1947, as amended, or any other provision of law, the President, acting by and with the advice and consent of the Senate, is authorized to appoint General of the Army George C. Marshall to the office of Secretary of Defense and General Marshall’s appointment to, acceptance of, and service in that office shall in no way affect any status, office, rank, or grade he may occupy or hold in the Army of the United States or any component thereof, or any emolument, perquisite, right, privilege, or benefit incident to or arising out of any such status, office, rank, or grade: Provided, That so long as he holds the office of Secretary of Defense, General Marshall shall retain the rank and grade of General of the Army which he now holds in the Army of the United States and he shall continue to receive the pay and allowances (including personal money allowance) to which he is entitled by law, and in the event the salary prescribed by law for the office of Secretary of Defense exceeds such pay and allowances, General Marshall shall be authorized to receive the difference between such pay and allowances and such salary.
Sec. 2. [sic] In the performance of his duties as Secretary of Defense, General Marshall shall be subject to no supervision, control, restriction, or prohibition (military or otherwise) other than would be operative with respect to him if he were not an officer of the Army.
Sec. 3. It is hereby expressed as the intent of the Congress that the authority granted by this Act is not to be construed as approval by the Congress of continuing appointments of military men to the office of Secretary of Defense in the future. It is hereby expressed as the sense of the Congress that after General Marshall leaves the office of Secretary of Defense, no additional appointments of military men to that office shall be approved.
Approved September 18, 1950.
Bobby Chesney is the Charles I. Francis Professor of Law and director of the Strauss Center for International Security and Law at the University of Texas at Austin. @bobbychesney
Image: U.S. Marine Corps photo by Sgt. Melissa Karnath