General Mattis Could Serve as Secretary of Defense Even without a Waiver from Congress

Because Senate Democrats eliminated the filibuster for executive-branch appointments, President-elect Trump’s nominees should have relatively smooth sailing in their confirmations. The (not yet official) nomination of General James Mattis to be secretary of defense is the lone exception, and some Democrats quickly realized their opportunity to throw sand in the gears.

Because of legislation adopted in 1947 (and more recently amended), General James Mattis is not currently qualified under federal law to serve as secretary of defense. Congress has provided 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.” To conform to this statutory ban, Congress will have to enact new legislation to exempt General Mattis from the seven-year rule, as it did in 1950 with General George Marshall. Both houses of Congress will have to vote to exempt Mattis from the statutory ban and present that legislation to President Trump for his signature.

This legislative exemption could be subject to a Senate filibuster. That seems highly unlikely — or at least extremely risky for a nominee of his stature. But that hasn’t stopped some on the left from calling for the Senate to filibuster the nomination after New York senator Kirsten Gillibrand indicated her opposition to the special legislation. It does not appear this movement has much traction, but it does raise the interesting issue of whether a special legislative exemption is even necessary here.

As I pointed out in my original post on this topic, the statutory ban on former military personnel serving as secretary of defense for some period after active duty is almost certainly unconstitutional. That post was limited to discussing the constitutional text. Quite frankly, a full discussion of the topic would make for a law-review article. Since the original post, I’ve seen some criticism from some conservatives whom I respect (especially my dear friend Andy McCarthy — whose most recent post was published just before I filed this piece, so I don’t fully engage his arguments here but have anticipated many of them) about my suggestion that the Constitution prohibits Congress from placing limits on the people that the president can nominate and appoint to serve as principal officers in the executive branch. But I don’t find the criticism convincing and expand a bit here on the issue.

The relative powers of the president and Congress with respect to appointments are set forth in Article II of the Constitution: “The President  . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.  . . . ” As I explained in my original post, this should be the end of it. The president’s power to nominate and appoint officers of the United States is exclusive. The only legislative check on that authority is the Senate’s role in advice and consent. That gives significant power to the Senate, since it can reject the president’s choice. But this does not give the Congress power to set the qualifications for the offices to which the president appoints.

It has not yet been set to hip-hop, but Alexander Hamilton wrote extensively about the relative roles of the president and Senate in the appointment process in the Federalist Papers. In Federalist No. 76., he rejected the notion that the choice of a nominee should be left to committee, arguing instead that it should be vested in the chief executive: “I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.” All of the advantage of an individual’s discerning judgment will be sufficiently protected by the exclusive presidential power to nominate: “In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment.”

So why have any legislative role in the appointment process? Why not leave it all to the president’s sole discretion? Hamilton answers that the necessity of Senate concurrence “would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.”

The Constitution thus provides for the Senate to advise and consent to the president’s appointment of his chosen nominees. The Senate might turn down a candidate like Mattis if it determined that he is too recently removed from the military himself or otherwise lacking in fitness for the job. The Senate can vote down nominees who it determines might be lacking in character or fitness for the office, who “had no other merit than that of coming from the same State to which [the president] particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”

But legislation requiring that Mattis be banned from appointment as secretary of defense trenches on the president’s power to nominate — to choose the person he believes will best serve in that role. As Hamilton wrote in Federalist No. 66, “There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose, they can only ratify or reject the choice of the President.” And if the Senate cannot choose, surely the whole of Congress cannot dictate that choice either.

The Supreme Court has not squarely decided this issue. Chief Justice Taft in Myers v. United States suggested that there might be some room for congressional legislation setting qualifications when he wrote that the qualifications set by Congress may not “so limit selection and so trench upon executive choice as to be in effect legislative designation.” As long as it is not the Congress doing the choosing, Taft seemed to suggest that congressional regulation of the qualifications for an executive office might be acceptable. The decision did not definitively decide this issue, as it dealt with the president’s power to remove executive-branch officials from office without congressional approval.

In 1989, Justice Anthony Kennedy, writing separately for two other justices, reasoned that the only legislative role in the appointment of executive officers is the Senate’s role in advising and consenting. In Public Citizen v. USDOJ, Justice Kennedy reasoned: “No role whatsoever is given either to the Senate or to Congress as a whole in the process of choosing the person who will be nominated for appointment.” Kennedy rejected the notion that Congress may have some limited role in restricting the president’s choice of nominees, reasoning that “where the Constitution by explicit text commits the power at issue to the exclusive control of the President, we have refused to tolerate any intrusion by the Legislative Branch.” Where a power “has been committed to a particular Branch of the Government in the text of the Constitution, the balance already has been struck by the Constitution itself.”

Since the text of the Constitution explicitly commits the power to nominate to the president, and his power to appoint is limited only by the ‘advise and consent’ role of the Senate, there is no reason to think that Congress as a whole has the power to restrict his choice of officials.

Kennedy’s opinion, while not binding, is undoubtedly correct. Since the text of the Constitution explicitly commits the power to nominate to the president, and his power to appoint is limited only by the “advise and consent” role of the Senate, there is no reason to think that Congress as a whole has the power to restrict the president in his choice of officials.

That does not mean that Congress has not sought to do so frequently. It has often set qualifications for executive offices. The original Congress required that the attorney general be “learned in the law,” a requirement that still applies to the solicitor general. Had that not been a commonsense requirement, it might have drawn some objection from the president. But unless and until the president seeks to appoint a plumber as solicitor general, this “requirement” is little more than a reflection of the obvious need to have someone trained in the law to serve in a lawyer’s job.

More recently, President George W. Bush objected to the constitutional authority of the Congress to limit the qualifications for appointees to the Federal Emergency Management Agency. His signing statement on the legislation noted that the “executive branch shall construe [the applicable provision] in a manner consistent with the Appointments Clause of the Constitution.” In other words, the president would take the requirements under advisement, but nominate whomever he wanted.

The main objection I have seen to my contention that the Congress cannot, by legislation, limit the president’s power to nominate and appoint the person of his choice (subject only to the Senate’s advice and consent) is that the Congress created the office that President-elect Trump seeks to fill, so the Congress can surely establish conditions on who may fill that office. That certainly doesn’t follow, and is wholly inconsistent with the Constitution’s text. In Buckley v. Valeo, the Court rejected a variation of this argument, reasoning that Congress’s power to create the Federal Election Commission does not mean that Congress can choose its members: “The position that, because Congress has been given explicit and plenary authority to regulate a field of activity, it must therefore have the power to appoint those who are to administer the regulatory statute is both novel and contrary to the language of the Appointments Clause. Unless their selection is elsewhere provided for, all officers of the United States are to be appointed in accordance with the Clause.”

#related#Does that mean that Congress cannot by legislation require that the president only appoint U.S. citizens to his cabinet? Well, as strange as that may sound, yes. But it doesn’t mean that the president would be able to appoint foreign citizens to his cabinet. The Senate can surely reject a non-citizen if it finds citizenship an important qualification for office. So too with the ban on recently retired military members from serving as secretary of defense. If a majority of senators think that General Mattis is too recently removed from the military, they can reject him. But telling the president that he cannot nominate and appoint General Mattis without special legislation giving him that permission is inconsistent with the plain text of the Appointments Clause and is, in my view, unconstitutional.

If Senate Democrats were to make the unlikely and very unwise decision to block legislation to allow General Mattis to be appointed, President Trump and the Republican Senate would be well within constitutional bounds to proceed with the confirmation and appointment anyway. That would leave an issue for the courts to decide — anyone injured by a decision by Secretary of Defense Mattis could challenge the validity of the decision on the grounds that his appointment is invalid. But if the Court were to reach that issue, there are strong reasons to conclude that the appointment of General Mattis, even absent a special legislative exemption from the seven-year ban, would be wholly constitutional.