Newly sworn in President Joseph R. Biden Jr. (D-DE) has nominated General Lloyd A. Austin III to be his Secretary of Defense. Unfortunately, General Austin is ineligible to serve under the National Security Act of 1947, he must be retired from active service for seven years to serve as Defense Secretary, as prescribed by 10 U.S.C. § 113. James N. Mattis (I-WA) was granted a "waiver" by the Republican controlled Congress in 2017. Now, some of you might be saying, "well, there you go. Give General Austin the same thing that General Mattis obtained, a waiver." No.
Congress should either amend or outright repeal the National Security Act of 1947, or reject General Austin's request for a waiver. "Waivers" do not exist in the Constitution for Congress to suspend laws. Nowhere, can they do that. I'm convinced that General Mattis and General Austin are more than qualified to serve as Secretary of Defense, but they are not eligible becasue they were not retired for seven years in order to serve. The Democratic-controlled Congress voted to "waive" the disability, with Represenative Jared Golden (D-ME-02) voting against. Here's what he said:
"President Biden is seeking to waive the requirement, which is intended to protect the American tradition of civilian control of the military, for his nominee for defense secretary, retired General Lloyd Austin. General Austin has been retired for four years.
"Today I voted against waiving the statutory requirement that the secretary of defense not have served in active military duty within the past seven years. This policy is meant to provide a cooling-off period between active service in the military and assuming the civilian leadership position of secretary of defense, a cabinet position that reports directly to the commander in chief, the president of the United States. My decision is in no way a reflection of any lack of respect for General Lloyd Austin, nor a lack of confidence in his ability to lead our military and the men and women in uniform. Should the collective judgment of the Congress be to approve President Biden’s request for this waiver, I hope my colleagues in the Senate will move quickly to confirm General Austin as the new secretary of defense, as I believe he is qualified by his long and honorable record of service to the nation in the United States Army. I am, however, concerned about waiving the seven-year cooling-off period, a policy tied to a foundational principle that our nation’s military should be subject to civilian control.
"I am also disappointed by the lack of substantive congressional debate that has been devoted to this important question. This requirement was put into place in 1947 with the creation of the Department of Defense and the position of the secretary of defense. To date, Congress has waived this requirement only twice, once in 1950 and not again for 67 years until it was granted in 2017 to Gen. Mattis, in part to accommodate for a president with no formal experience in government. By contrast, President Biden is uniquely qualified for the times we find ourselves in, and his experience both as Vice President and U.S. Senator prepare him well to serve as our commander in chief. History shows that Congress has long respected and taken seriously the requirement of civilian control and provided a waiver for only the most exceptional circumstances.
"I do not believe we find ourselves in such circumstances today. This is not a vote about the qualifications of General Austin -- that is for the Senate to decide. This vote is a decision over whether or not the law’s requirement for a seven-year cooling-off period will remain a meaningful constraint in the future. If it becomes a mere formality in nature, it will no longer serve any meaningful purpose in ensuring civilian control of the military. It is not insignificant for Congress to waive this requirement twice in four years after having done so only twice over a period of nearly seven decades.
"The principle of civilian control of the military is far too important for our democracy to justify supporting this waiver under the circumstances confronting the nation at this moment."
(Congressman Golden is a member of the House Armed Service Committee, where he sits on the Tactical Air and Land Forces and Seapower and Projection Forces Subcommittees. He served as a Marine in Afghanistan and Iraq.)
That is a good point the Congressman made, and one that cannot be refuted, as well as the fact that temporarily suspending a law is not a power Congress has, they can amend or outright repeal it, but choosing when to have the law be enforced is not something they have the right to do. I am convinced that if General Austin is confirmed (which I believe he will be), and I don't believe that he is unable to discharge the duties of the office, but this is about following the law, after an Administraton had spent four years not following the law, the new Administration should not follow in the footsteps of the prior one. As to who should be nominated instead? That's up for President Biden to decide. Not me.
Ciao.
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