Today's Article
President-elect  
Trump has chosen
retired Marine
General James
'Mad
Dog
' Mattis to be his
Defense Secretary,
even though U.S. law
forbids the selection.
The American Spark
Trump May Set Dangerous Precedent With Defense Secretary
Nomination

By Cliff Montgomery - Jan. 18th, 2017

President-elect Donald Trump has chosen retired Marine General James ‘Mad Dog’ Mattis to be his Secretary
of Defense, even though U.S. law forbids Mattis from being appointed to the job.

A provision in the U.S. Code of Laws clearly states:

    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.

Mattis retired from the Marines only four years ago.

So why is Trump still pushing for the nomination? Because the Republican-run Congress is toying with the
idea of suspending the law so that the Republican president-elect gets his way.

Such an action may set a terrible precedent, as this law exists to ensure the “civilian control of the military, a
fundamental tenet underpinning the design and operation of the American republic since its inception in 1776,
if not before,”
points out a recently-released study on the matter from the Congressional Research Service
(CRS).

Below, the
American Spark quotes the entire summary of the CRS report:


The proposed nomination of General (Ret.) James Mattis, United States Marine Corps (hereafter referred to
as “General Mattis”), who retired from the military in 2013, to be Secretary of Defense requires both houses of
Congress to consider whether and how to suspend—or remove—a provision contained in Title 10 U.S.C. §113
that states:

    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.

“This provision was originally contained in the 1947 National Security Act (P.L. 80-253), which mandated that
10 years pass between the time an officer is relieved from active duty and when he or she could be appointed
to the office of the Secretary of Defense.

“Only one exception to this provision has been made. Enacted on September 18, 1950, at the special request
of President Truman during a time of conflict, P.L. 81-788 authorized the suspension of statutory requirements
otherwise prohibiting General of the Army George C. Marshall from serving as Secretary of Defense.

“In 2007, Section 903 of the FY2008 National Defense Authorization Act (P.L. 110-181), Congress changed
the period of time that must elapse between relief from active duty and appointment to the position of
Secretary of Defense to seven years. [...]

“Historically, the restriction relating to the prior military service of the Secretary of Defense appears to be a
product of congressional concern about preserving the principle of civilian control of the military, a funda-
mental tenet underpinning the design and operation of the American republic since its inception in 1776, if not
before.

“At the conclusion of World War II, some observers believed that the operational experience during the war
pointed to the need for better integration of the military services, and therefore argued for the establishment of
what would become the Department of Defense.

“Others, however, voiced concern that this greater degree of integration might overly empower the military,
and thus threaten civilian control of the military.

“Accordingly, as the 81st Congress considered whether, and how, it should create a National Military
Establishment, it determined to enact several provisions to mitigate the risk that greater military integration
would come at the expense of civilian control. These included restrictions on military service member eligibility
for the position of Secretary of Defense, and limitations on the powers of the Chairman of the Joint Chiefs of
Staff.

“Nearly 67 years later, the proposed nomination of General Mattis has again generated a debate amongst
policymakers, scholars, and practitioners regarding what civilian control of the military means in a contem-
porary context, and how to best uphold that principle. [...]

“In response to the proposed nomination of General Mattis to the position of Secretary of Defense, Congress
established special ‘fast track’ procedures governing Senate consideration of a bill or joint resolution which
would suspend the existing seven-year restriction (Section 179 of the Further Continuing and Security
Assistance Appropriations Act, 2017 [P.L. 114-254]).

“Accordingly, there are at least three basic options that Congress may pursue as it considers the issue of
General Mattis’ nomination:

  • suspending the statutory requirement that seven years elapse between relief from active duty and
    appointment to position of Secretary of Defense;

  • eliminating entirely or reducing the statutory requirement that seven years elapse between relief from
    active duty and appointment to position of Secretary of Defense; and

  • choosing not to pass legislation that would suspend the provision in Title 10, U.S.C. that currently
    prohibits General Mattis to become Secretary of Defense.

“Related to the latter, the Senate might also choose to consider General Mattis’ nomination, regardless of
whether or not Congress passes legislation designed to suspend or remove the relevant provision in Title 10,
U.S.C. Should the Senate choose to pursue this option, it is not clear what the legal implications might be.”



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