Congress Should Change The Law To Allow Mattis To Serve As Defense Secretary

Congress Should Change The Law To Allow Mattis To Serve As Defense Secretary

Federal law currently bars James Mattis from taking the job of defense secretary. Congress should change that.
Kyle Sammin
By

In nominating James Mattis for secretary of defense, President-elect Donald Trump has put forth his most credible, qualified, and popular cabinet selection so far.

Mattis, a retired four-star U.S. Marine Corps general, has earned the respect not only of the Marines who served under him, but also of members of the other branches of the armed forces, military analysts and experts, members of Congress, and a wide swath of the American public. Under most circumstances, his nomination would be approved unanimously in the Senate in January.

There is one objection to Mattis as defense secretary, though, and it’s a big one: federal law bars him from taking the job.

An Old Problem with an Old Solution

When Congress merged the departments of war and Navy and various intelligence agencies to make the Department of Defense in 1947, many were concerned at the level of power being concentrated in one cabinet department. Inter-service rivalries also led many in the Army and Navy to worry that their branch of service might come to be dominated by the other, or by the newly created Air Force.

With the post-World War II military being as large a peacetime force as had ever been assembled in American history, many also added their concerns that the military would come to dominate civilian government, in contravention of the entire theory of American government.

A solution to all of this was found section 202 of the National Security Act of 1947. In this act Congress merged the defense and intelligence branches of the government under one secretary of defense. As with most executive branch officers, the description of the job was brief, and the qualifications boiled down to one long sentence:

There shall be a Secretary of Defense, who shall be appointed from civilian life by the President, by and with the advice and consent of the Senate: Provided, That a person who has within ten years been on active duty as a commissioned officer in a Regular component of the armed services shall not be eligible for appointment as Secretary of Defense.

While not excluding all former officers, Congress made it clear that they wanted a civilian at the head of the new Defense Department.

Qualifications like this were not without precedent in American history. In 1789, the first Congress created the Treasury Department and required that no one could be appointed secretary of the Treasury (nor appointed to any other office listed in that act) who “shall directly or indirectly be concerned or interested in carrying on the business of trade or commerce, or be the owner in whole or in part of any sea-vessel,” along with other prohibitions.

Congress wanted no one to use the Treasury Department to further his own business interests. Similarly, that same Congress passed a Judiciary Act later that year, which created the office of U.S. attorney. Again, Congress limited who could hold the office, restricting it to those “learned in the law,” which in those pre-law school days was the equivalent of requiring a JD degree. The first Congress, which included many men who had helped write the Constitution, believed that restrictions like this on executive branch personnel were legal and constitutional.

Rule and Exceptions

So when the 80th Congress followed the example of their predecessors in 1947, no one batted an eye. Although there had never been such a restriction on the secretaries of war or the Navy (and active-duty military officers had held the position from time to time,) there was little objection to the requirement. Also when, just three years later, President Harry S. Truman wished to violate the ten-year restriction, no one got especially worked up about that, either.

In the early days of the Korean War, with American and South Korean forces driven almost completely off the Korean peninsula, Truman lost faith in his defense secretary, Louis A. Johnson. In a move to rebuild confidence in the military, he sent for five-star general and former Secretary of State George C. Marshall.

Marshall’s rank complicated matters. The five-star rank, formally known as “General of the Army” was new to the American military, having been introduced late in the Second World War. Marshall had left active duty at the war’s end, but the statute enabling the five-star rank suggests that generals of the Army never retire, and continue to draw pay as though they are on active duty for the rest of their lives. Whatever the technical state of his retirement, Marshall violated the ten-year limit, having last been on true active duty as Army chief of staff just five years earlier.

After some objections, Congress acceded to Truman’s request and passed a waiver specifically exempting Marshall from the law. To make it clear that this was just a one-time exception, Congress also included in its waiver a statement that it was “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.” Congress still claimed to revere the idea of civilian rule, but made an exception for one general—a dubious application of the law.

Was the Change Principle or Partisanship?

That they were willing to make the exception speaks more loudly than their protestations. So why the change of heart? While there was significant turnover of seats in the 1948 elections, a large majority of the members of Congress in 1950 were the same legislators who had passed the National Security Act three years earlier. One major difference: Republicans controlled Congress in 1947, but Democrats regained the majority in 1949.

The 80th Congress, which passed the National Security Act, was the first controlled by Republicans since the Great Depression began, and many of its acts were concerned with limiting the growing power of the executive branch. The most lasting result of that effort is the Twenty-Second Amendment, which limits the president to two terms. This was a Congress concerned with executive power, and while they acquiesced in the new organization of the Defense Department, they added some safeguards.

Requiring a civilian to hold the position and requiring his confirmation by the Senate is protection enough from the threat of military dictatorship.

Then Democrats took back Congress and promptly ignored those safeguards, passing a law that said that just this once, the president could appoint a general to the job. They were right to do so, even if their method was flawed.

No matter his employment history, the secretary of defense serves at president’s pleasure and must be confirmed by the Senate. While the 80th Congress had good reasons to roll back executive power, and may have had just concerns about the popularity of victorious World War II generals, the ten-year restriction was overkill. Requiring a civilian to hold the position and requiring his confirmation by the Senate is protection enough from the threat of military dictatorship.

Even if some rogue general were to attempt to overthrow the civilian government—an event far more common in Hollywood fantasies than American history—he would not need to hold a cabinet position to do it. What keeps it from happening is that the rule of law and civilian control of the military are deeply ingrained in American culture, as well as in law.

In 2008, Congress reduced the ten-year requirement to seven years in that year’s National Defense Authorization Act. There was considerable controversy about the bill, but it was all concerned with the wars in Afghanistan and Iraq, the prisoners at Guantanamo Bay, and the disposition of Iraq government funds in the United States. Media coverage of the change to the ten-year requirement was nil, and the act was passed by a huge margin in a Democratic Congress and signed into law by a Republican president. The change was completely uncontroversial.

Now, we have a nominee for defense secretary who on Inauguration Day will have been retired from the USMC for three years, seven months, and 29 days. If a change from ten years to seven was passed without debate, why would a reduction to three years inspire such opposition from the Democrats?

As in 1947, partisanship is being disguised as principle. Democrats do not have the votes to defeat any of Trump’s nominees, but they could use the filibuster to defeat an amendment to the National Security Act. Sen. Kirsten Gillibrand, who voted for the National Defense Authorization Act as a member of the House in 2008, has signaled her intent to do just that.

Time to Change the Law

Knocking down one of a new president’s nominees because of legal requirements is nothing new. In 1869, Ulysses S. Grant nominated Alexander Stewart, a successful businessman, for Treasury secretary. Grant had already irked Republican Party leaders by pursuing an independent course in picking his cabinet, rather than consulting with powerful senators. Senators Charles Sumner and Roscoe Conkling had their revenge by blocking any waiver or amendment to the law, dooming the nomination. As with the Mattis nomination, no one objected to Stewart’s qualifications; the reluctance to adjust the law was an attack on the president and an excuse for the Senate to show its strength.

For all the talk of the 1947 act, the 2008 amendment is the one on which Republicans and other Mattis supporters should focus their attention. Concerns about civilian control of the military were not enough for even one member of Congress to object to reducing the requirement from ten years to seven. Why should reducing it to three years be any different? Does anyone believe that a general who retired seven years ago is no threat to democracy, but one who has only been out of uniform for three is inherently more dangerous?

The reluctance to adjust the law was an attack on the president and an excuse for the Senate to show its strength.

President Dwight Eisenhower’s defense secretary, Thomas Gates, had served in uniform twelve years before his 1957 appointment. Would he have led a coup if he had been nominated in 1953? Of course not. A would-be tyrant does not change his mind about democracy simply by having spent a few years more wearing a civilian suit.

What keeps the United States free of military dictatorship is not the National Security Act of 1947, either in its original form or as altered by the 2008 amendment, but the respect our soldiers have for the rule of law and the principle of civilian control. Active-duty officers who served as secretary of war or defense did not use their position to undermine civilian control, and neither will a general three years removed from active duty.

Keeping a prohibition on a uniformed officer as secretary may make sense, but refusing to reduce the time limit requirement will only deprive the nation of a good man’s service. Amending the statute, rather than waiving it for one man, will further reinforce the cultural respect for the rule of law that stands as our best bulwark against tyranny.

A special waiver for Mattis sends the message that the law doesn’t apply to one man; a reform of the requirement says that the law should be changed for everyone equally. The incoming Congress should not hesitate to modify the law for this and all future nominees. They should trust the rule of law and their own good judgement exercised through the confirmation process to ensure that future defense secretaries respect civilian rule.

Kyle Sammin is a lawyer and writer from Pennsylvania. Read some of his other writing at kylesammin.com, or follow him on Twitter @KyleSammin.

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