It is rare that Andy McCarthy and I disagree on constitutional issues. But if you ever want to be put you through your paces, disagreeing with Andy is a good way to do it. So to address some of the issues Andy addressed in his post and a few other points raised by some very smart conservatives whom I greatly respect . . . .
First, the most substantial serious originalist challenge to the notion that Congress lacks the authority to limit the qualifications for principal officers of the United States is the potential historical gloss on the constitution’s Appointments Clause by the early congresses. As I have already noted, the original Congress required that the Attorney General be “learned in the law.” That was a term of art at the time, requiring that the AG be a trained attorney. Congress obviously thought that it could limit the President’s choices of appointees – or at least no one in Congress raised any concerns to the contrary in response to this requirement. President Washington did not object to Congress limiting his selection of Attorney Generals to persons learned in the law. But why would he? It is unlikely that anyone would think that the Attorney General should not be legally trained, so it would be unlikely to draw an objection.
When the first Congress later (in April 1790) sought to put more substantial restrictions on the president’s power to nominate and appoint the person of his choice for a federal office, there were, in fact, constitutional objections raised in Congress. In establishing the office of the Superintendent of Indian Affairs, Congress sought to require that the office be filled with a military officer. In an excellent law review article, Hanah Metchis Volokh cites objections raised in the House. A motion as made on the House floor to remove the military officer requirement, which “was said to infringe the power of the President, and… to be unconstitutional; that it may counteract the essential interests of the people, by precluding the President from appointing perhaps the most proper character in the United States; that persons in civil life may be found fully competent to the business, many such possessing a perfect knowledge of Indian affairs.” But the proponents of the requirement answered that the “President and the Senate are restricted in their appointment of officers in several other departments,” citing the requirement that the Attorney General be “learned in the law.” The proposal was eventually defeated (as Volokh suggests, on unrelated grounds).
What this demonstrates is that there were disagreements in Congress about legislation that would put any real statutory limits on the President’s ability to nominate and appoint. The historical record is important here, but it is ambiguous. Yes, Congress did enact legislation purporting to limit the President’s authority to nominate an Attorney General, but the limit was so unobjectionable, it doesn’t really tell us much about more serious limits. And when Congress sought to require a military officer to fill a particular office, the objection was raised that such a limitation was an unconstitutional restraint on the President’s appointment power.
Andy’s central defense of the 7-year ban on former military officers serving as Secretary of Defense is that Congress has substantial authority to regulate the armed services. That is certainly true, but it doesn’t change the relative roles of Congress and the President found in the Appointments Clause. I can see two ways that Congress’s authority to regulate the Army/Navy might be used to justify this limit here. First, it might be that, since Congress can “make rules for the government and regulation of the land and naval forces,” it certainly has the power to establish and regulate a Department of Defense (or before that, of War). But as I have noted, the Congress’s power to establish a Department and an office of Secretary does not necessarily carry with it the power to set the qualifications for that office. And the Supreme Court has rejected the notion that Congress’s power to establish an office permits it a role in selecting the officers (as in Buckley v. Valeo, dealing with the legislation creating the Federal Election Commission and reserving a congressional role in selection of the commissioners). I would note here that Congress may have greater power in setting qualifications for inferior officers in government (e.g., those not subject to advice and consent), but for principal officers, like cabinet officials, the Appointments Clause contemplates that the only congressional role in determining the qualifications of officers is the Senate’s “advice and consent role.”
Second, I could also see the argument that Congress’s role in regulating the military might give it authority to limit the involvement of military officials in civilian jobs after retirement. That same argument might be used to suggest that Congress could, by legislation, prohibit former military officers from serving as president for some time after retirement from the military. That would plainly be incorrect, as Congress lacks authority to add qualifications for the presidency by statute. Those qualifications are set by the constitution (e.g., the 35-year age requirement and “natural born citizen” requirement), and cannot be varied by legislation. The point here is simply that Congress’s authority over the armed services doesn’t give it the authority to modify explicit constitutional requirements in other areas. The textual commitment to the presidency to both nominate and appoint is limited only by the “advice and consent” clause and, as I have noted, the Incompatibility Clause.
Andy’s suggestion that Congress can obviously require that the Secretary of Defense be over 21 years old, a citizen, and of sound mind is not so obvious to me. But that is not to suggest that a President could get away with appointing a 14-year old Canadian with a 56 IQ. The Senate can prevent such bad choices through the confirmation process. Legislation is not required to do so. Is advice and consent a foolproof check on bad presidential decision-making? No, but then, political realities may also come into play. And the constitution is anything but foolproof.
In suggesting that the 7-year statutory ban on Mattis’s service as Secretary of Defense is unconstitutional, I am not suggesting that Congress forego enacting a statutory waiver. There is no reason to force a confrontation between the branches if it can be avoided. And here, I think it will be avoided, given General Mattis’s overwhelming qualifications and character. But if something were to go offtrack with Democratic opposition, it is worth keeping in mind.
Having poked the McCarthy bear, I will now go hide.