The Lloyd Austin Conundrum
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Civilian control of the military is among our republic’s great strengths, a tradition not only inculcated in civic education (what remains of it) but admirably manifested by our armed forces, in particular their aversion to ensnarement in partisan politics. Nevertheless, the ongoing debate over President-elect Biden’s nomination of retired Army general Lloyd J. Austin III to become secretary of defense is wrongheaded.
Austin retired from military service in April 2016. Consequently, he is on the wrong side of the National Security Act of 1947. By its terms, the federal statute that outlines the duties of the defense secretary bars from the position any retired officer who has not been separated from active duty for at least seven years. The consensus is thus that Austin needs a waiver from Congress in order to be appointed. He has been separated for a tad under five years. Moreover, technically speaking, it could be argued that Army officers are never really separated. Even after retirement, they remain officers until death; they can be recalled at any time — unless they resign their commissions, which is rare.
Austin should not need a waiver. If he does need one, he should clearly get one.
This is not a call for rubber-stamp confirmation. To the contrary, General Austin was Centcom’s commander when the Obama-era military brass notoriously fluffed up intelligence reports to support the administration’s political narrative of counterterrorism success. He has been implicated in that practice, and his performance should be scrutinized — as should all aspects of experience and character relevant to his fitness. But the happenstance that he’s been retired for five years, as opposed to seven, should have little if anything to do with the Senate’s assessment of his nomination.
Constitutionally speaking, the statutory length-of-service restriction flies in the face of the president’s appointment power, though there is an argument that it fits within Congress’s power to regulate the armed forces. Practically speaking, the restriction is ill-conceived: It misidentifies the source of civilian control over the military; it is arbitrary in that Congress has changed and waived it in the past; and it unnecessarily infringes on the Senate’s advice-and-consent authority, which enables senators to give the length of separation from service whatever weight it deserves.
Ignoring or waiving the dubious statute would not prevent the Senate from rejecting any unworthy nominee. But applying it, in connection with a position in which it is only natural that most appointees have been retired military officers, would disqualify nominees who might be patently suitable — such as were the legendary Army general George Marshall, the third defense secretary in history, and Marine general James Mattis, President Trump’s first defense secretary.
The Constitution does not require that there even be a secretary of defense, much less prescribe a length of separation from service as a qualification. The post did not exist until 1947. (In the early days of the republic, a cabinet sectary headed the land and naval forces, under the auspices of the Department of War. The Navy became a separate Department at the end of the 18th century.)
In Article II, the Constitution vests all executive power in the president. As Justice Scalia memorably explained in his famous Morrison v. Olson dissent (1988), “this does not mean some of the executive power, but all of the executive power.” Article II goes on, moreover, to make the president the commander in chief of the armed forces, and to empower the president to appoint “Officers of the United States,” by and with “the Advice and Consent of the Senate.”
A few important principles flow from this. First, the president is the only executive official endowed with actual power. All other executive officers, including the most high-ranking cabinet secretaries, are delegates. They do not possess their own power; they are permitted at the president’s pleasure to exercise the president’s power. That is why they may be removed without cause.
Second, civilian control of the military obviously hinges on the civilian status of the president, not the defense secretary. If the president were an active member of the armed forces, civilian control of the military would be imperiled even if the defense secretary had never served or had been retired from active duty for decades. The president is the commander in chief, regardless of who is running the Pentagon.
Third, because the Constitution explicitly states exceptions to the executive power that is otherwise fully endowed in the president, those exceptions are exclusive. For example, in 1926, the Supreme Court invalidated a congressional statute that purported to require the Senate’s advice and consent to remove a federal officer. Because the Constitution states that the limitation on the president’s relevant power is Senate consent to the nominee’s appointment, the Court reasoned that Congress had no authority to add a removal limitation. The statute was an impermissible incursion on the president’s power over the executive branch.
Similarly, Congress has prescribed a ten-year term for the FBI director. Contrary to some modern revisionism, the purpose of the term was not to give the Bureau and law enforcement a measure of independence from the political leadership of the executive branch; it was to prevent the rise of another J. Edgar Hoover, whose four decades in the job gave him unique leverage over political officials and led to various abuses. In any event, the term notionally assigned to this executive officer has no bearing on the chief executive; presidents have fired FBI directors at will, long before their terms expired, and when President Obama wanted to extend Director Robert Mueller for an additional two years beyond the term, Congress quickly assented.
The seven-year restriction on defense secretaries is an effort, by statute, to limit the president’s appointment power beyond the Constitution’s requirement that the president obtain the Senate’s consent. In parallel, it is also an extra-constitutional restriction on the Senate’s authority to approve an otherwise meritorious nominee. Further, it strays from the principle that one Congress may not bind a subsequent Congress. To be sure, the statute purports to bind the Senate, not the full Congress; but it has the effect of binding, with a prior Congress’s enactment, the only component of Congress that is authorized to approve presidential nominations.
As noted above, I am not saying there is no conceivable basis for the length-of-separation mandate. It was Congress, not the Constitution, that created the Defense Department and the position of defense secretary. Moreover, Article I, Section 8, of the Constitution gives Congress broad power to regulate “the land and naval Forces.” The courts give lawmakers a wide berth in this area. If there ever were a constitutional challenge to Congress’s imposition of extra conditions beyond Senate consent on the defense secretary’s qualifications (such as a length-of-separation requirement), the courts might well sidestep the controversy. It is a political question best left to the political branches, which is why presidents in such situations seek waivers from Congress rather than running to court.
Still, we should note that the length-of-separation mandate was originally ten years until being reduced to seven in 2007. That illustrates, if not arbitrariness, at least ambivalence. So do the waivers Congress granted to President Truman for General Marshall and to President Trump for General Mattis.
Of course it is preferable to have some real temporal separation between a retired officer’s time on active duty and that retired officer’s supervision of the military. The longer the separation, the less likely the secretary will be in the position of supervising former colleagues (including close friends, perhaps bonded in combat). Yet lawmakers have taken this prudent consideration and tried to turn it into a hard-and-fast rule that applies a particular time frame to all cases. But every nominee is different, so how surprised should we be that Congress has been unable to hold fast to a single time frame?
Hypothetically, it would be a major issue if a nominee were still in the military or if they had just left active duty, just as it would be a major issue if a nominee had never been in the military at all. Would either situation be an automatic disqualification? I doubt it — it would weigh heavily, but final judgment would depend on the nominee’s other accomplishments and demerits. In comparison, the difference between the statute’s iterations of ten and seven years is marginal — one could see it easily outweighed by other relevant attributes.
Nearly six years elapsed between Marshall’s resignation as Army chief of staff and his appointment as defense secretary in 1951 — a tumultuous time from the end of World War II, in which Marshall played a pivotal role; to Marshall’s equally essential post-war role and tenure as secretary of state; to the outbreak of war in Korea, for which the new, insufficiently prepared Defense Department needed a firm hand. Mattis was retired from active duty for a bit under four years, returning as the military grappled with the challenges he knew intimately — maintaining counterterrorism vigilance while coping with China, Russia, and Iran.
For Austin, it would be five years’ separation — a bit more than Mattis and a little less than Marshall. In Austin’s case, as in his predecessors’, the Senate is fully capable of evaluating whether, in light of our historical circumstances as well Austin’s particular background and skill set, his length of separation is a problem. Waiving the statute would not prevent any senator from voting against his nomination out of concern that his active military career is too recent. But he deserves an up-or-down vote based on the fullness of his qualifications and his fitness, vel non, for leadership in our current threat environment.
There are aspects of General Austin’s career that warrant examination, but he served our nation with distinction and has enjoyed private-sector success. It would be capricious to deny him consideration due to a length-of-separation law that is constitutionally dubious, is practically unnecessary, and has never been deemed immutable.
