Because he is an excellent candidate for the job and an exemplar of many of the things we look for in a leader near the top of the military chain of command, Congress should confirm retired Marine General James Mattis as Secretary of Defense, in spite of the legal obstacle presented by 10 U.S.C. § 113(a). Section 113(a), the statute creating the post of Secretary of Defense, prohibits the appointment of a Defense Secretary who was an active-duty commissioned officer of “a regular component of an armed force” within the prior seven years. General Mattis retired in May 2013, so he’d have been out of the service a little under four years.
I agree with Shannen Coffin that the constitutionality, or at least enforceability, of the provision is somewhat dubious if the Senate goes ahead and consents to Mattis’ appointment, but there ought to be no need for such a step. Congress passed the law, and Congress can change it, either by repealing it, shortening the period, or providing a waiver for Mattis. Both of the latter two steps have been done before. Just three years after the statute was passed in 1947, Congress waived its application (supposedly a one-time thing) to let then-Secretary of State George Marshall – five years removed from his post as Army Chief of Staff but technically still on active duty (owing to his high rank as General of the Army) – serve as Secretary of Defense under President Truman after the outbreak of the Korean War. The seven-year period was also shortened from the previous ten, when the statute was amended by a Democratic Congress in 2008. This is hardly the sort of longstanding tradition that we should regard as beyond rethinking.
Moreover, the nation did just fine without the rule before 1947. The post of Secretary of War was first created under the Articles of Confederation, and was first held by General Benjamin Lincoln, who was appointed in October 1781 just weeks after accepting the surrender of Cornwallis at Yorktown. Lincoln was succeeded in 1785 by Henry Knox, who was only a year out of uniform after almost a decade as a colonel and general in the Continental Army, and would be Secretary of War for almost a decade, transitioning to the post under the new Constitution and leaving office at the end of 1794 near the end of President Washington’s second term. Jefferson Davis, before his time as President of the Confederacy, served as Secretary of War from 1853-57 under Franklin Pierce, six years after his service as a colonel in the Mexican War.* Ulysses S. Grant accepted an interim recess appointment as Secretary of War in mid-1867 while on active duty and overseeing the military occupation of the South (although Grant’s brief tenure was controversial due to the fight over the legality of the Tenure of Office Act, which purported to bar the removal of his predecessor, Edwin Stanton, and which led to the impeachment of President Andrew Johnson). The three Secretaries of War who followed Stanton in succession between 1868 and 1869 (John Schofield, John Rawlins and William Belknap) were all Civil War generals on active duty or recently separated from it.
The Secretary of Defense reports to the President, and we’ve had presidents who were not long out of uniform – Grant only resigned his commission the day he was inaugurated, and Eisenhower only retired from active duty seven months before taking the Oath of Office. Unsurprisingly, the nation has been more willing to turn to military officers for these positions during or immediately after a major war. Our situation is more diffuse now, with wars of varying degree still being pursued in Afghanistan, Iraq, Syria, Yemen, Libya and Somalia, and a man like General Mattis who has seen combat in the Gulf War, Afghanistan and Iraq is well-situated to help President Trump decide which fronts to fight on, and how. He’s also likely to have the gravitas to take on the perennially out-of-control Pentagon procurement process, which has to be continually refocused on serving the men and women who actually fight our wars. And as a Marine, he’s still an outsider to the larger branches of the armed services.
The Republican Congress that passed the original National Security Act in 1947 was concerned, of course, that we were entering an age of standing armies and military-industrial complexes very different from the eras of Knox and Grant (Knox was a bookseller by trade, not a professional soldier). It was passed in the shadow of Franklin Roosevelt’s long presidency, in July 1947, four months after the same Congress passed the Twenty-Second Amendment imposing term limits on the presidency. That Congress had seen a world where military regimes had rapidly subverted civilian governments over the prior two decades, and it was doubtless concerned as well that American voters would soon be turning to men like Marshall, Eisenhower, and Douglas MacArthur to lead them. The Act was, in fact, the birth of today’s permanent national security state, combining the armed services into a single Department of Defense and creating the National Security Council and the CIA. Congress went out of its way to ensure that this new behemoth could remain under civilian control. Notably, it did not impose similar restrictions on the other key posts – General Michael Flynn, Donald Trump’s nominee for National Security Advisor, only retired from the military in 2014, and General David Petraeus was appointed head of the CIA while still on active duty and sworn in just a week after his retirement.
The concerns of that era are not totally irrelevant today; it’s still a healthy thing to have much of the upper ranks of the chain of command and the national security state staffed by people from civilian life or long removed from the military. It makes sense to require that the Secretary of Defense be out of uniform, and for the culture of the Pentagon, it would not be a good idea to get into the routine habit of making the job the sole province of retired generals, such that the place turns in on itself more than it already has. But we haven’t had a run of those – three of the last nine Secretaries of Defense (the current SECDEF, Ashton Carter, as well as William Cohen and Dick Cheney) had never served in the military, and four others (Chuck Hagel, Leon Panetta, Don Rumsfeld and Les Aspin) had been elected to Congress between their military service and their tenure as Defense Secretary; Rumsfeld, Cheney and Panetta were also all former White House Chiefs of Staff. It’s only the unusual circumstances of Donald Trump’s election (specifically, the fact that he’s deeply estranged from the national security veterans from previous Republican Administrations and on Capitol Hill) that eliminated that kind of competition for General Mattis. In today’s world, it’s probably sufficient to simply require that the job go to someone who has been out of uniform for at least one election cycle (in this case, since before the 2014 elections). A similar cooling-off-between-elections period is used in the Twenty-Seventh Amendment, and ensures at least that an active officer won’t be campaigning for the job without an intervening election. It’s true that this means opening the job to someone whose long and recent military service colors his view of the Pentagon, but then, John McCain sees the world largely through the lens of his military service, and he’s been out of the Navy for 40 years.
Will Senate Democrats block a waiver or change to the statute? Bear in mind, it takes a simple majority of the Senate to confirm Mattis (due to Harry Reid having abolished the filibuster for confirmation of executive appointments in 2013), and the same majority can pass a waiver or amendment if they can break a filibuster. House Republicans are likely to support the nomination, and have the votes to pass a waiver or amendment themselves. So it will come down to whether 41 of the 48 Senate Democrats want to block a change in the law – a maneuver that will easily be interpreted by the public as tantamount to filibustering a distinguished general and leaving Trump without a steady hand to advise him on military matters. Even the Democratic base, much as it desires blood right now, is unlikely to really want a fight that removes that kind of support from a Commander-in-Chief they already see as dangerously impulsive. Indeed, Mattis is also likely to have the prestige to act as a check on the more potentially problematic Flynn. And for all the Democrats’ complaints about Republican obstruction, the Obama Administration got the national security team it wanted, often with little or no opposition: Panetta was confirmed by a 100-0 vote, Petraeus 94-0, Carter 93-5, Hillary Clinton 94-2, and John Kerry 94-3.
Kirsten Gillibrand has been the first out of the gate to oppose a waiver, claiming that “Civilian control of our military is a fundamental principle of American democracy, and I will not vote for an exception to this rule.” My guess is that this is best interpreted as an opening salvo in the 2020 Democratic presidential primaries, on a par with then-Senator Obama voting against Chief Justice Roberts and voting to filibuster Justice Alito, and that the people who come out against Mattis will be deep-blue-state Senators with presidential ambitions or a power base in the progressive Left, not the 10 Democratic Senators running for re-election in 2018 in states Trump just won.
* – A friend notes that Davis would have passed muster under the current Section 113, since he led a unit of volunteers rather than being a regularly commissioned officer.