The Corner

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 is a contributing editor to National Review. He practices appellate law in Washington, D.C.

Most Popular

U.S.

Men Literally Died for That Flag, You Idiots

The American flag’s place in our culture is beginning to look less unassailable. The symbol itself is under attack, as we’ve seen with Nike dumping a shoe design featuring an early American flag, Megan Rapinoe defending her national-anthem protests (she says she will never sing the song again), and ... Read More
Books

The Plot against Kavanaugh

Justice on Trial, by Mollie Hemingway and Carrie Severino (Regnery,  256 pp., $28.99) The nomination and confirmation of Brett Kavanaugh to the Supreme Court was the political event of 2018, though not for the reasons anyone expected. All High Court confirmations these days are fraught with emotion and tumult ... Read More
Politics & Policy

He Just Can’t Help Himself

By Saturday, the long-simmering fight between Nancy Pelosi and her allies on one side and the “squad” associated with Alexandria Ocasio-Cortez on the other had risen to an angrier and more destructive level at the Netroots Nation conference. Representative Ayanna Pressley, an African-American Massachusetts ... Read More
White House

On Gratitude and Immigration

Like both Rich and David, I consider it flatly inappropriate for the president of the United States to be telling Americans -- rhetorically or otherwise -- to “go back where you came from.” In consequence, you will find no defense of the president from me, either. What Trump tweeted over the weekend was ... Read More
Education

Gender Dissenter Gets Fired

Allan M. Josephson is a distinguished psychiatrist who, since 2003, has transformed the division of child and adolescent psychiatry and psychology at the University of Louisville from a struggling department to a nationally acclaimed program. In the fall of 2017 he appeared on a panel at the Heritage Foundation ... Read More