On the Legality of the Mattis Nomination

Reports that President-Elect Trump will nominate retired Marine General James Mattis as Secretary of Defense have brought to the public’s attention a 1940s-era statute that purports to limit the power of the president to nominate recently retired military members to the SecDef job.  Federal law provides 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 ban used to be 10 years, but was shortened sometime in the last couple decades). 

On its face, this law means that Congress will have to enact a statutory exception to permit General Mattis to serve as Secretary of Defense, something it apparently has only done once in the case of George Marshall in 1950.  At that time, Congress also noted “the sense” of the lawmakers that “no additional appointments of military men to that office shall be approved.”

This statutory limitation on the president’s power to appoint officers of his choosing is almost certainly unconstitutional.  The constitution vests the President with the sole authority to nominate executive officers of his choosing.  The only constitutional limitation is the incompatability clause – which prevents a member of Congress from serving in any “Office of the United States.” 

Congress has no role in deciding whom the president can nominate.  Congress does have a role in the appointment of those officers, but that is limited to the Senate’s “advise and consent” role.   In both the nomination and appointment process, the ultimate power lies with the President.  Congress cannot limit who the president chooses to appoint as an executive officer.  The Senate can withhold consent, but that is as far as they can go in preventing the president’s appointment.

So can the legislation be viewed as a condition of the Senate’s consent?  That’s also doubtful – or better yet, just plain wrong.  The House can have no role in how the Senate exercises its constitutional authority, and even more, no individual Senator can be beholden to a legislative whim of prior Congresses in deciding how to exercise the advice and consent role.  So legislation that directs the Senate how to vote on a confirmation would be equally problematic.

There may be very good policy reasons behind this limitation on retired military serving as Secretary of Defense – i.e., concerns about maintaining civilian control of the military.  Both the President and Congress may want to respect those policy concerns in most instances.  But Congress cannot prevent Donald Trump from nominating Mattis, no matter when Mattis retired from active duty. 

The reports are certainly correct that Congress is likely to go through the utterly unnecessary step of “waiving” the applicability of the statute.  But if 51 Senators simply chose to ignore the statute and vote for Mattis without observing the statutory ban, there’s every reason to think that their actions would be legal under the constitution

Shannen W. Coffin — Shannen W. Coffin is a contributing editor to National Review. He previously served in senior legal positions in the Justice Department and Office of Vice President during the George ...

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