Why Does General Mattis Need a Waiver to be Defense Secretary?

Last week President-Elect Donald Trump nominated General James Mattis, a retired Marine who held several significant commands during his career, to serve as his Secretary of Defense. If confirmed, Mattis would become the first former general to serve as Secretary of Defense since George Marshall during the Truman administration, but his past profession also creates an obstacle to his confirmation.

In 1947, Congress passed the National Security Act, which created the position of Secretary of Defense to oversee America’s military agencies which had been consolidated into an entity which eventually became the Dept. of Defense. When they did so, they included a provision that prevented individuals from serving as Secretary of Defense if they had been an officer in the military within the last 10 years. This was done primarily to ensure that the nation’s military remained under civilian control, as the thinking went that a decade was enough time away from the military to give a former officer a broader strategic view.

Soon after signing that provision into law, President Truman had to ask Congress for a waiver so that he could appoint Marshall to serve as Secretary of Defense which was granted. But lawmakers left the requirement intact, and while Congress shortened the retirement requirement to 7 years after leaving the military in 2008, it still poses problems for Mattis.

What does this mean for Mattis’ confirmation?

Mattis has only been retired for three years, meaning that he wouldn’t ordinarily be eligible to serve as Secretary of Defense until May 2020, so Congress will have to approve a waiver for him like it granted Marshall in 1950.

Ironically, it could be more difficult for Congress to approve the waiver than to confirm Mattis’s nomination. The waiver will need to be passed in both the House and the Senate, where the traditional 60-vote requirement will be in effect. Assuming the waiver is granted, Mattis’s confirmation in the Senate will only require a majority vote based on a 2013 change to Senate rules.

Democrats have said that they want to hold hearings to consider the potential impact that granting a waiver for Mattis could have on civilian control of the military. While that doesn’t necessarily mean he will be turned away, at least eight Democrats will need to vote to approve his waiver in the Senate for it to be granted because there are 52 Republicans in the upper chamber. That balance of power means that this is the only nomination Democrats can block without help from GOP Senators, so time will tell if they choose to use that leverage or allow Mattis to become Secretary of Defense

— Eric Revell

Photo Credit: Secretary of Defense/Creative Commons