Should Congress Grant General Austin a Waiver to Serve as Secretary of Defense? (H.R. 335)

What is H.R. 335?

(Updated March 12, 2022)

This bill was enacted on January 22, 2021

This bill would create an exception to the rule that prevents an individual who has been an active duty military officer in the last seven years from serving as Secretary of Defense to allow retired four-star Army General Lloyd Austin, who left the service in 2016, to serve in the role President Joe Biden nominated him for. This waiver would not permanently alter the law regarding the seven-year cooling off period for former officers to serve as Secretary of Defense, so a future nominee with a similar background would require a separate waiver. 

Argument in favor

General Austin served the Army with distinction prior to his retirement and is an impeccable choice to serve as Secretary of Defense. His record merits a waiver, and there’s no reason to think he would undermine the tradition of civilian control of the military.

Argument opposed

General Austin shouldn’t be granted a waiver, as civilian control of the military is too important a tradition to gamble on a general who only retired five years ago. Biden should nominate someone else who has been out of the military for at least seven years.

Impact

General Austin; the Dept. of Defense; and the Biden administration.

Cost of H.R. 335

A CBO cost estimate is unavailable.

Additional Info

In-Depth: House Armed Services Committee Adam Smith (D-WA) introduced this legislation to grant a waiver for retired General Lloyd Austin to serve as Secretary of Defense:

“The legislation filed today is an important step to advance the process for Secretary-designate Austin’s historic nomination. While I initially had concerns about the nomination of another recently retired general, Secretary-designate Austin has reinforced his understanding of the role civilian control of our military plays in the safety and security of our democracy and is committed to upholding this cherished principle. Once confirmed, I look forward to a forthcoming and transparent working relationship during his tenure.”

Several bipartisan members of the Senate Armed Services Committee have expressed opposition to granting a waiver for General Austin, including Sens. Richard Blumenthal (D-CT), Tom Cotton (R-AR), Tammy Duckworth (D-IL), and Elizabeth Warren (D-MA). Duckworth released a statement which read in part:

“General Austin is an excellent officer who served honorably and faithfully for more than 40 years. He broke barriers the entire way and commanded troops with integrity and compassion, and he is certainly capable of leading the Department of Defense. Yet, I can not ignore the fact that civilian control of our military is one of the foundational principles of our country — one that I spent 23 years in uniform defending. This principle is bigger than any single individual, and my concerns over this waiver are not related to General Austin’s qualifications. As a combat Veteran, I am disappointed that the legal requirements enshrining this principle were reduced in 2007 without any Congressional debate, and I am frustrated that we are now debating whether to further erode civilian leadership over our military for the second time in four years.”

Of Note: Two waivers have been granted for recently retired military officers to serve as Secretary of Defense. The first went to retired Army General George Marshall, who was the Army Chief of Staff during World War II and served in President Harry Truman’s Cabinet. When the post was first created in 1947, a nominee for Secretary of Defense was required to have been retired from military service for at least 10 years, but Marshall was granted a waiver in 1950 despite retiring only four years prior . In 2008, the requirement was shortened to seven years.

The second waiver was granted to retired Marine Corps General James Mattis in 2017, who had left the service in 2013. Congress approved Mattis’s waiver on bipartisan votes of 81-17 in the Senate and 268-151 in the House, and he was later confirmed by the Senate on an overwhelming 98-1 vote.

Media:

• House Armed Services Committee Democrats Press Release

• Roll Call

• Sen. Tammy Duckworth (D-IL) Statement (Opposed)

• Causes (Austin nomination)