President-elect Donald Trump has announced that retired Marine Gen. James “Mad Dog” Mattis is his pick for secretary of defense. There’s just one problem: Mattis isn’t legally eligible to hold the position without a waiver from the Senate. And now some Senate Democrats are signaling they will oppose any move to grant Mattis that waiver.
According to a federal statute, “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 U.S. Marine Corps in 2013, making him ineligible for the post until at least 2020.
Historically, precedent does exist for a retired member of the military to serve before the statutory waiting period is over; Congress granted Ret. Gen. George C. Marshall such a waiver in 1949. But granting Mattis a waiver would essentially require the passage of a separate federal act that would have to go through the standard process by which a bill becomes law. That is important because Democrats used the “nuclear option” on the confirmation of executive branch appointments in the Senate, so they cannot outright filibuster Mattis’ confirmation. However, they can filibuster any legislation that would make him eligible to serve or grant him a waiver, meaning that Democrats have sufficient numbers in the Senate to block Mattis’ confirmation, if they are so inclined.
Some Senate Democrats have said they oppose granting a waiver or confirming Mattis. Among them, Sen. Kirsten Gillibrand (D-N.Y.) has tweeted:
While I respect Gen Mattis’s service, I'll oppose a waiver-civilian control of our military is a fundamental principle of American democracy
— Kirsten Gillibrand (@SenGillibrand) December 2, 2016
Incoming Senate Minority Leader Chuck Schumer (D-N.Y.) has not yet signaled what he intends to do about Mattis’ confirmation, or whether he would support a filibuster of any waiver for Mattis to serve. Schumer’s direction will likely play a key role in the future of Mattis’ nomination, and Schumer might well attempt to extract concessions from the Trump transition team on other appointments in exchange for an agreement not to filibuster a waiver for Mattis.
Additionally, Mattis’ waiver would have to be approved by the House of Representatives, although that promises to be an easier task in the Republican-controlled chamber, where no Republicans have yet indicated that they intend to oppose a waiver for Mattis.