Trump Needs a Congressional Waiver to Appoint Mattis as Defense Secretary

by Andrew C. McCarthy

Response To...

On the Legality of the ...

Politically, it would be very foolish for Democrats to fight President-elect Trump’s selection of retired Marine General James Mattis to be Secretary of Defense. General Mattis’s reputation as an erudite warrior is well earned, and he is highly thought of by policymakers, fellow commanders, and grunts. Nevertheless, Trump needs a congressional waiver to proceed with the nomination. Mattis retired from the armed forces three years ago. By statute, to qualify as Defense Secretary, a nominee must be out military service for at least seven years.

Congress should willingly waive this statutory requirement in Mattis’s case. I do believe, however, that the waiver is necessary. On this, with due trepidation, I part company with my pal Shannen Coffin, who argued here on Thursday that that the statutory limitation on the president’s appointment power is almost certainly unconstitutional. (See also Dan McLaughlin’s excellent post on Friday, agreeing with Shannen that the limitation is constitutionally dubious, but arguing – as I do as follows – that Congress should bypass any such concerns and just enact the waiver.)

I respectfully disagree on the constitutional point. I am confident that the statutory limitation is valid and thus that there must be a waiver if General Mattis is to serve as Secretary of Defense.

It is true that the Constitution assigns the president the sole power to nominate and appoint officers of the United States. It is also true that the Senate’s power of advice-and-consent is the principal constitutional check on the president’s appointment power. (U.S. Const., art. II, sec. 2, cl. 2.) It does not necessarily follow, however, that Congress may not impose qualifications that any nominee must meet when the office in question has been created by Congress.

What are now the Department of Defense and the position of Secretary of Defense are creatures of statute. The 1940s-era statute to which Shannen refers as the source of the limitation on the president’s appointment power is the National Security Act of 1947. It is section 202 of that act that establishes the Secretary of Defense – the office, the qualifications to serve in it, and the attendant duties.

Nothing in the Constitution requires that there be such an office. Indeed, nothing in the Constitution mandates that Congress establish federal armed forces at all, although the Constitution expressly permits Congress to do so (art. I, sec. 8, secs. 12-14). Since Congress did not have to provide for a Secretary of Defense at all, and could theoretically restructure the military in a way that eliminated the position (which didn’t exist for the first 160 years of constitutional governance), it would be odd if Congress were without power to mandate qualifications for the office.

This is especially so because the Constitution gives Congress considerable authority over military matters. Lawmakers are empowered to decide whether we have national armed forces and to make rules for their regulation. That is why, for example, the armed forces are governed by the Uniform Code of Military Justice rather than civilian law.

The progenitors of the Department and Secretary of Defense are the Department and Secretary of War. It is worth noting that they, too, were created by statute. This occurred in 1789, and only after President George Washington implored the first Congress to do so multiple times. The reason why browbeating was necessary is the same reason why the Constitution limits the congressional appropriation for the army to two years: The Founders were leery of a standing army under the control of the central government. Recalling Caesar and Cromwell, they worried that an army could tyrannize the republic. They reluctantly agreed with Washington that it was necessary, but they wanted it harnessed by significant civilian control.

Obviously, there are limits on Congress’s regulatory power over military matters. The president also has constitutional power that must be respected. The Constitution vests all executive power in the president and makes the president commander-in-chief of the armed forces. Military operations are an executive exercise, even though Congress has an important role in authorizing (and paying for) them. Congress may not, under the guise of exercising regulatory power, usurp executive power – it may not, for example, enact laws that direct how combat operations are to be conducted.

Moreover, because executive power belongs to the president, all who are delegated to exercise it must serve at the president’s pleasure. Thus, Congress may not, under the guise of legislating rules applicable to the military, enact laws purporting to limit the president’s power to dismiss at will any and all executive officials, including the Secretary of Defense.

Unlike Shannen, though, I do not believe Congress’s power to legislate qualifications for an office it did not have to create in the first place is limited to the incompatibility clause (art. I, sec. 6, cl. 2 – which, as Shannen observes, prohibits members of one branch from serving in another).

For instance, I am confident Congress could require that the Secretary of Defense must be an American citizen, over the age of 21, or of sound mind. (Compare, Section 504 of Title 10, U.S. Code, governing qualifications for service in U.S. armed forces.) Such conditions would reflect the concerns of the Framers, who worried about the possibility that the central government’s most awesome powers could fall under foreign influence or into incompetent hands. Similarly, I see no constitutional problem with Congress’s mandating that, to qualify as Defense Secretary, a nominee must come from civilian life or be removed from military service for a certain number of years. Such conditions also reflect the Framers’ qualms about national armed forces and the need for strict civilian control over them.

The strongest argument in favor of the proposition that the Constitution prohibits congressional limits on the president’s choice of a defense secretary is the 1789 act that established the War Department and its Secretary. (See here, scroll to pp. 49-50.) This statute empowered the president to appoint anyone of the president’s choosing. There was no restriction requiring that the secretary be a civilian, much less removed from military service for a period of years.

But does the fact that the first Congress declined to prescribe qualifications signal its understanding that the recently ratified Constitution forbade it from doing so? Or did lawmakers simply decide not to prescribe qualifications because they trusted the judgment of George Washington, and were aware that he would appoint Henry Knox, a hero of the Revolutionary War and close aide of Washington’s who, for several years, had been serving as secretary of war under the Continental Congress?

I suspect the answer is the latter.

In any event, I don’t see anything in the Constitution that prevented Congress, in creating the office of Secretary of War, and later, of Secretary of Defense, from prescribing qualifications. The Supreme Court’s jurisprudence has been very deferential to Congress’s authority to regulate the armed forces, compel military service, and prescribe the qualifications for military service. Moreover, in addressing a statute that limits the president’s nominating power in a manner similar to the National Security Act – viz., the National Aeronautics and Space Act of 1958, which requires that NASA’s Administrator “be appointed from civilian life” – the Justice Department in 2009 made no claim that the limitation was an unconstitutional restriction on presidential power. (I realize this memo dates from the early days of the Obama administration, when DOJ was self-consciously distancing itself from what it took to be Bush-Cheney overreliance on executive power. Nonetheless, since the point of the memo was to support an Obama nominee – a retired Marine General, by the way – there would surely have been at least a passing reference to any constitutional argument in the nominee’s favor.)

Like Shannen, I believe the president is entitled to significant deference in his choice of the cabinet officials who will wield his power and execute his policies. I also think President-elect Trump should relish a fight over General Mattis, an extraordinary man, if Democrats are suicidal enough to mount one. I am convinced, nevertheless, that Trump should proceed on the assumption that a waiver is required because the statutory limitation on his appointment power is, in this instance, valid.

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