	Introduction

This report is designed to assist Congress as it considers how to proceed with the proposed nomination of General (Ret.) James Mattis to be Secretary of Defense. After exploring the history of the statutory restriction and its evolution over time (see " Preserving Civilian Control of the Military in the 1947 Act and Restricting the Position of Secretary of Defense "), it touches upon some of the broader questions that have recently been raised in the public debate on whether, and how, this proposed nomination might impact civilian-military relations and the principle of civilian control of the military. The challenge was how to do so while at the same time preventing the emergence of a national military that could threaten the new Republic . These included 10 U.S.C. P.L. President Truman submitted the nomination of General Marshall to be Secretary of Defense to the Senate on September 18, 1950. Statutory Changes to the Restriction on Secretary of Defense Eligibility in the FY2008 National Defense Authorization Act (P.L. 1585 contained a provision (Section 903) that would amend sections 113, 132, and 134 of Title 10, U.S.C., to reduce from 10 years to 5 years the period of time following active duty military service before a commissioned officer of a regular component could be appointed as Secretary of Defense, Deputy Secretary of Defense, or Under Secretary of Defense for Policy. The key contrast between the debates 66 years ago and today is that the public discussion surrounding the proposed nomination of General Mattis seems to be less about preserving the principle of civilian control of the military (although that is certainly being debated), and more about civilian-military relations more generally. Expedited Procedures Governing Senate Consideration of Legislation Waiving a Restriction Related to the Military Service of the Secretary of Defense66

Section 179 of the Further Continuing and Security Assistance Appropriations Act, 2017 ( P.L. 114-254 ), establishes special "fast track" procedures governing Senate consideration of a bill or joint resolution which would suspend the seven-year restriction contained in 113(a) of Title 10 of the U.S. Code . 114-254 who has been retired at least three years. Suspend the statutory requirement that seven years elapse between relief from active duty and appointment to p osition of Secretary of Defense . Eliminate entirely or reduce the statutory requirement that seven years elapse between relief from active duty and appointment to posit ion of Secretary of Defense . Related, should Congress choose not to pass relevant legislation, the Senate may choose to allow General Mattis's nomination to proceed, regardless. It is currently unclear what the legal implications of pursuing this option might be. 81-788 ("An act to authorize the President to appoint General of the Army George C. Marshall to the office of Secretary of Defense"), which authorized the suspension of certain statutory requirements otherwise prohibiting General of the Army George C. Marshall from serving as the Secretary of Defense. P.L. In 1939 just as World War II began in Europe, President Roosevelt appointed Marshall Army Chief of Staff. These requirements would have automatically made General Marshall ineligible for the position due to an insufficient period of time elapsing between his military service and appointment as Secretary of Defense (Section 202 of the National Security Act of 1947, which stipulated that a person who had, within 10 years, served on active duty as a commissioned officer in the regular armed services was ineligible for appointment as Secretary of Defense). Opposition to the bill in light of General Marshall's personal qualifications focused on questioning General Marshall's physical capability to assume the duties and responsibilities of the office of Secretary of Defense; challenging General Marshall's record of service as Special Representative of the President to China and as Secretary of State; and allegations that General Marshall would be unable to set aside any prior "special attachments" to the U.S. military establishment and effectively lead the combined military and civilian elements of the Department of Defense.
The proposed nomination of General (Ret.) James Mattis, United States Marine Corps (hereinafter referred to as "General Mattis"), who retired from the military in 2013, to be Secretary of Defense requires both houses of Congress to consider whether and how to suspend—or remove—a provision contained in Title 10 U.S.C. §113 that states,
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.
This provision was originally contained in the 1947 National Security Act (P.L. 80-253), which mandated that 10 years pass between the time an officer is relieved from active duty and when he or she could be appointed to the office of the Secretary of Defense. Only one exception to this provision has been made. Enacted on September 18, 1950, at the special request of President Truman during a time of conflict, P.L. 81-788 authorized the suspension of statutory requirements otherwise prohibiting General of the Army George C. Marshall from serving as Secretary of Defense. In 2007, Section 903 of the FY2008 National Defense Authorization Act (P.L. 110-181), Congress changed the period of time that must elapse between relief from active duty and appointment to the position of Secretary of Defense to seven years.
In response to the proposed nomination of General Mattis to the position of Secretary of Defense, Congress established special "fast track" procedures governing Senate consideration of a bill or joint resolution which would suspend the existing seven-year restriction (Section 179 of the Further Continuing and Security Assistance Appropriations Act, 2017 [P.L. 114-254]). Accordingly, there are at least three basic options that Congress may pursue as it considers the issue of General Mattis's nomination:
suspending the statutory requirement that seven years elapse between relief from active duty and appointment to position of Secretary of Defense; eliminating entirely or reducing the statutory requirement that seven years elapse between relief from active duty and appointment to position of Secretary of Defense; and choosing not to pass legislation that would suspend the provision in Title 10, U.S.C. that currently prohibits General Mattis to become Secretary of Defense.
Related to the latter, the Senate might also choose to consider General Mattis's nomination, regardless of whether or not Congress passes legislation designed to suspend or remove the relevant provision in Title 10, U.S.C. Should the Senate choose to pursue this option, it is not clear what the legal implications might be.
Historically, the restriction relating to the prior military service of the Secretary of Defense appears to be a product of congressional concern about preserving the principle of civilian control of the military, a fundamental tenet underpinning the design and operation of the American republic since its inception in 1776, if not before. At the conclusion of World War II, some observers believed that the operational experience during the war pointed to the need for better integration of the military services, and therefore argued for the establishment of what would become the Department of Defense. Others, however, voiced concern that this greater degree of integration might overly empower the military, and thus threaten civilian control of the military. Accordingly, as the 81st Congress considered whether, and how, it should create a National Military Establishment, it determined to enact several provisions to mitigate the risk that greater military integration would come at the expense of civilian control. These included restrictions on military service member eligibility for the position of Secretary of Defense, and limitations on the powers of the Chairman of the Joint Chiefs of Staff. Nearly 67 years later, the proposed nomination of General Mattis has again generated a debate among policymakers, scholars, and practitioners regarding what civilian control of the military means in a contemporary context, and how to best uphold that principle.