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S. 11 (117th): A bill to provide for an exception to a limitation against appointment of persons as Secretary of Defense within seven years of relief from active duty as a regular commissioned officer of the Armed Forces.

Should nominees for the position get to skip the required seven-year wait after their military service ends?

Context and what the bill does

Civilian control of the military is supposed to be one of the fundamental principles of the U.S. system. While the Chair of the Joint Chiefs of Staff is the nation’s top-ranking military official, under federal law, the Secretary of Defense cannot have served in the military within the prior seven years.

That requirement can only be waived by Congress, which has done so twice since World War II. The first instance was for George Marshall’s 1950 appointment in the middle of the Korean War. The second was in 2017 for President Trump’s original nominee, retired four-star Marine general Jim Mattis, who had only been out of the military for four years.

President-elect Joe Biden has nominated Lloyd Austin, a retired four-star Army general who previously served as head of U.S. forces in Iraq and later for the entire Middle East. He has only been out of the military for four and a half years.

New legislation would provide a waiver for Austin to serve as secretary of defense. It was introduced on January 3 as bill number S. 11 by Sen. Chuck Schumer (D-NY).

What supporters say

Supporters counter that even if the seven-year waiting period makes sense in general, in this specific case this nominee merits a waiver, just as Mattis did.

“The law states that an officer must have left the service seven years before becoming Secretary of Defense. There’s a good reason for this law that I fully understand and respect,” President-elect Joe Biden said in a speech. “I would not be asking for this exception if I did not believe this moment in our history didn’t call for it. It does call for it.”

“His many strengths and his intimate knowledge of the Department of Defense and our government I think are uniquely suited for the challenges we face now, the crisis we face now,” Biden continued. “He is the person we need at this moment, in my opinion. Given the urgent threat and challenges of our nation’s forces, he should be confirmed swiftly.”

What opponents say

Opponents include some members of Biden’s own party, who fear that such a waiver would erode the principle of civilian control over the American military.

“I have the deepest respect and admiration for Gen. Austin, and his nomination is exciting and historic. But I believe that a waiver of the seven-year rule would contravene the basic principle that there should be civilian control over a nonpolitical military,” Sen. Richard Blumenthal (D-CT) told Politico. “That principle is essential to our democracy, and it’s the reason for the statute, which I think has to be applied, unfortunately, in this instance.”

Odds of passage

Although only the Senate votes whether or not to confirm a president’s Cabinet nominee, a waiver such as this would change federal law and thus must be passed by both the Senate and House.

In 2017, the Senate passed Mattis’ waiver 81–17, with Republicans supporting it 50–0 and Democrats supporting it 30–16. The House passed it 268–151, but while Republicans supported it by 232–1, House Democrats broke with their Senate counterparts and largely opposed the waiver 36–150. It’s unclear whether they would do the same now that the president would be a member of their own party.

Last updated Jan 9, 2021. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Jan 13, 2021.

This bill allows the first person nominated and appointed as Secretary of Defense after 12:01 p.m. (Eastern Standard Time) on January 20, 2021, to be a person who is, on the date of appointment, at least four years after relief from active duty as a commissioned officer of a regular component of the Armed Forces. Under current law, an individual may not be appointed as Secretary of Defense within seven years after relief from such active duty.