Retired Gen. Lloyd Austin’s nomination to become the nation’s 28th secretary of defense is an important historical milestone marking the first appointment of an African American to the position. Given his accomplishments, and considering that we’re in a moment when white nationalist and racist forces are attacking our democracy, it is easy to see the appeal of a swift confirmation.
That said, his Senate confirmation requires a second, related action from Congress: to waive a long-standing law that prohibits former military officers from serving as secretary unless seven years have passed since their retirement. Both chambers approved a waiver on Thursday, paving the way for his confirmation. This approach leaves the law and our republic’s longstanding principle of civilian control over the military severely wounded.
The principle underlying this prohibition is as old as our republic. Alexander Hamilton devoted attention to the subject multiple times in the Federalist Papers. After World War II, Congress saw fit to make the prohibition explicit in the 1947 National Security Act, when it charged the secretary of defense with serving as the principal assistant to the president in all matters related to the management and functioning of the Department of Defense. The rationale for the law is multi-faceted. First, it addressed the Founders’ concern about the dangers that standing armies present the longevity of democratic republics. When Congress created the modern-day Defense Department, the civilian role ensured that intramilitary service rivalries would be managed fairly under an impartial civilian leader.
While echoes of both rationales remain today, the most common justification for the law was captured by Secretary James Mattis, who also had to receive a waiver to serve in the role, during his Senate confirmation hearing in 2017: “Civilian leaders bear these responsibilities because the esprit-de-corps of our military, its can-do spirit, and its obedience to civilian leadership reduces the inclination and power of the military to criticize or oppose the policy it is ultimately ordered to implement.”
The political nature of the position, alone, cuts against the grain of the apolitical ethos embedded in our military. This is an asset to our nation that should be preserved. Nonetheless, the historic nature of Gen. Austin’s nomination as its first black defense secretary, his long, accomplished tenure in the military, and Congress’ traditional deference to a president’s pick make it unsurprising that both chambers approved the waiver so quickly.
Even so, Congress should use this moment to recommit to our nation’s foundational principle that the military steer clear of civilian roles that decide matters of war and peace. It should demonstrate that the exception to the rule has now not become the rule. The best way it can do so is by amending the law to discourage future presidents from seeking such waivers.
For starters, Congress should go on record reaffirming its commitment to civilian control over the military. A simple vote in both chambers resolving that the underlying rationale for the prohibition remains as sound today as it did more than 70 years ago when it was enacted and would reaffirm congressional intent. Congress provided little in the way of such intent back in 2008, when it tinkered with the law to reduce the required amount of time from 10 years to seven. The legislative branch should not make the same mistake again.
Such a hortatory expression from Congress would be necessary but may not be sufficient to strengthen the law’s backbone. Congress should also consider mandating certain process hurdles before exercising the waiver. A couple to consider would be a 60-day review requirement before Congress may act on a waiver request, as well as a vote in the House and Senate on the waiver request. This would impose an added cost on the president for seeking the waiver in the form of extended congressional scrutiny. The latter would sustain the practice of the last two exceptions, while the former would prevent the president from installing his nominee swiftly.
Congress might impose an additional prohibition on waivers for any other senior position in the Department of Defense when it has already provided one such waiver. For example, if the Congress chooses to grant Austin a waiver, none of his other senior leadership team could be granted a waiver. This would extend to the deputy secretary and the other service secretaries.
Doing so would ensure that the civil-military balance is reinforced at a moment when an appointment of a recently retired military person as secretary of defense has weakened it.
In 1950, as Congress considered George C. Marshall’s nomination to become defense secretary—the first time lawmakers approved a waiver to allow a nominee to serve—Marshall said that as a second lieutenant he thought “the Army would never get anywhere unless a soldier was a secretary of war” (a precursor to the modern secretary of defense position). But upon reflection after a storied career inside and outside the military, Marshall came to the “fixed conclusion that he should never be a soldier.”
Congress may yet again deviate from Gen. Marshall’s considered advice, but it should do so with its eyes open, acknowledging the foundational principles it is waiving, and take action in the future to alter the legal incentive structure so future presidents think twice before asking the Congress to waive the law again.
Eric Edelman, a former undersecretary of defense for policy and chair of the National Defense Strategy Commission, is counselor at the Center for Strategic & Budgetary Assessments. Roger Zakheim, a former general counsel of the House Armed Services Committee and commissioner on the National Defense Strategy Commission, is director of the Ronald Reagan Institute.