With President-elect Biden announcing retired general Lloyd Austin as his pick for Defense Secretary, 10 U.S.C. 113(a) is back in the news.  It provides:

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.

General Austin does not meet the seven year limit, so he needs a waiver from Congress.  Or does he?  Maybe the statute is unconstitutional.

Mike Rappaport had an interesting post on this issue four years ago in connection with President Trump’s nomination of James Mattis as Defense Secretary (Mattis also failed the seven year test, but got a waiver from Congress).  From the core of his analysis:

The argument for concluding that the Congress cannot pass the qualification requirement is that [the appointments] clause gives to the President and the Senate the decision whether a person is qualified for the office.  The President, with the consent of the Senate, has the power to decide who to appoint for an officer and that includes deciding whether his qualifications are sufficient.

The counter to this argument is that the Clause does not govern qualifications, but only the selection of a person who has the requisite statutory qualifications.  Congress has the power to set the qualifications for an office based on its authority to “establish . . . by law . . . officers of the United States.”  One might argue that establishing an office includes the power to establish qualifications for the office.

If establishing an office includes the power to establish qualifications for the office, then the President and the Senate have only the power to determine whether someone, who has the legally required qualifications, is an appropriate person to appoint to the office.  If not, then the President and the Senate can choose who they like, notwithstanding any statutory qualifications.

It is not entirely clear what the answer is.  Establishing qualifications might or might not fall under the power to establish an office.  My intuition is that there is a bit stronger case for concluding that qualifications are part of the office.  Under that view, then, Congress could establish the binding qualifications.

Ultimately, answering this question would turn on the history of these matters.  One aspect of the history is that the King of England had the power both to establish the offices and to make the appointments.  This Constitution then split the power between the President (and the Senate) and the Congress.  The question is on what side the power to set qualifications was placed.  Given the fact that the English practice is not that helpful, an examination of the practice in the states prior to the Constitution would be extremely important.

My tentative view is that the restriction is unconstitutional for the reasons stated in the post.  It infringes the appointments power, which is vested solely in the President and the Senate.  The seven year rule is said to be based in a desire to preserve civilian control over the military.  But that’s a policy decision as to who is best qualified for the job.  The President may believe that someone with more immediate military experience is actually better qualified.  (President Washington appointed former general Henry Knox as Secretary of War in 1789; Knox would have failed the seven year rule if it existed then.) The constitutional check on this assessment is the Senate, which must agree to the appointment (as Hamilton described in Federalist 76).  The appointments clause does not give the House a say in the matter.  But if Congress can specify qualifications for executive offices, that creates an appointments role for the House, which can drastically limit the choices available to the President by refusing to waive previously enacted qualifications.

In an originalist analysis, early post-ratification practice seems significant.  For the most part, the first Congress did not specify qualifications for the offices it created.  For example, no qualifications were specified for the Secretaries of State, War or Treasury when those offices were created in 1789.  Nor were any qualifications specified for judges in the 1789 Judiciary Act.  This practice suggests that Congress thought the assessment of qualifications was part of the appointment power, not the power of creating offices.

The record isn’t entirely one-sided, however.  The Judiciary Act did require that the Attorney General and the U.S. District Attorneys be “person[s] learned in the law.”  One might argue that this is not a material limitation on appointment, as it’s hard to imagine that the President would nominate anyone for such positions who did not have at least some legal experience; whether that experience qualified as “learned in the law” surely would as a practical matter be for the President and Senate to decide in connection with the appointment.

I’m not sure if there are other early examples of Congress prescribing qualifications.  David Currie, in The Constitution in Congress (p. 43 n. 255) reports that:

The following April [i.e., 1790], however, Representative Scott moved to excise from a bill to regulate Indian commerce a requirement that the Superintendent of Indian Affairs be a military officer, arguing among other things that this restriction … “infringe[d] the power of the President.”  In response it was noted that “the President and Senate are restricted in their appointments of officers in several other departments,” and the Attorney General was cited as an example.  When the bill was enacted, the military qualification had disappeared — the precedents suggested for reasons of policy rather than constitutional compulsion.

Currie goes on to cite presidential power expert Edward Corwin for the proposition that “a vast variety of qualifications” have been imposed by Congress over the years — which is surely true of more recent practice, but not (I think) of early practice.

Thus I’m inclined to say that the text and early practice indicate that Congress cannot impose meaningful limits on the President’s selection.  At least, it seems that Congress should be highly deferential to the President in approving statutory waivers.

NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey

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