H. Rept. 115-13 - 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 FORCES115th Congress (2017-2018)
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115th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 115-13
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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
_______
February 16, 2017.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Thornberry, from the Committee on Armed Services, submitted the
following
R E P O R T
[To accompany H.R. 393]
[Including cost estimate of the Congressional Budget Office]
The Committee on Armed Services, to whom was referred the
bill (H.R. 393) 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, having considered the
same, report favorably thereon without amendment and recommend
that the bill do pass.
PURPOSE AND SUMMARY
The purpose of this legislation is to authorize the
President to appoint General James N. Mattis, USMC (Ret.), as
Secretary of Defense. The legislation authorizes the President
to nominate and, by and with the advice and consent of the
Senate, appoint, an individual as Secretary of Defense who is
within 3 years of relief from Active Duty as a commissioned
officer of a regular component of the Armed Forces. The
legislation applies only to the first person appointed after
enactment. At the date of introduction of the legislation,
President-elect Donald J. Trump had announced his intention to
nominate General Mattis as Secretary of Defense.
BACKGROUND AND NEED FOR LEGISLATION
In 1947, Congress created the position of Secretary of
Defense as part of the National Security Act of 1947 (Public
Law 80-253). Public Law 80-253 required that the Secretary of
Defense be appointed from civilian life by the President, by
and with the advice and consent of the Senate, but it made
ineligible for appointment any person who had been on Active
Duty as a commissioned officer in a regular component of the
Armed Services within the past 10 years. The limitation was
codified in section 113 of title 10, United States Code. In
2007, section 903 of the National Defense Authorization Act for
Fiscal Year 2008 (Public Law 110-181) reduced the limitation
from 10 years to 7 years.
Need for legislation
On November 8, 2016, Donald J. Trump was elected President
of the United States. On December 1, 2016, President-elect
Trump announced his intention to nominate General James N.
Mattis, USMC (Ret.) to the position of Secretary of Defense.
General Mattis retired from the Marine Corps in 2013. Thus,
absent legislation, section 113 of title 10, United States
Code, prohibits the appointment of General Mattis as Secretary
of Defense.
Prior exceptions to the prohibition on recently retired officers
serving as Secretary of Defense
An exception to section 113 of title 10, United States
Code, is rare but not unprecedented. On September 13, 1950,
President Harry S. Truman sent a letter to Congress requesting
legislation that would authorize General of the Army George C.
Marshall, then Secretary of State, to serve as Secretary of
Defense. General Marshall had received a lifetime commission,
and was still an officer of the Army even while serving as
Secretary of State. Thus, General Marshall was prohibited from
being appointed Secretary of Defense by what is now section 113
of title 10, United States Code.
Two days later, on September 15, 1950, the House Committee
on Armed Services met to consider legislation (H.R. 9646)
waiving the prohibition for General Marshall. The committee met
in executive session and reported out the legislation favorably
by a vote of 18-7. No witnesses attended. The Committee on
Rules met that same morning and issued a rule providing for
floor debate on the bill. The House adopted the rule and, at
the conclusion of the allotted time for debate, voted to pass
the bill by a vote of 220-105.
The Senate had been simultaneously considering similar
legislation, and by unanimous consent substituted the bill that
had just passed the House. That evening, the Senate passed the
legislation and on September 18, 1950, the President signed it
into law (Public Law 81-788). The President promptly nominated
General Marshall to the position of Secretary of Defense, and,
after a confirmation hearing, his nomination was approved by
the Senate and General Marshall was confirmed as Secretary of
Defense on September 20, 1950.
Qualifications of General Mattis
General James N. Mattis, USMC (Ret.) has distinguished
himself as a national security leader; a wartime commander,
with multiple deployments to the Republic of Iraq and the
Islamic Republic of Afghanistan; a scholar who has written on
civilian-military relations at Stanford University's Hoover
Institution; and a student of military history.
General Mattis enlisted in the Marine Corps in 1969 and
attended Central Washington University as part of the Reserve
Officers' Training Corps program. He earned a bachelor's degree
in 1971 and was commissioned as a second lieutenant the
following year. He retired in 2013 after a 41-year Marine Corps
career that included field commands in the Persian Gulf, Iraq,
and Afghanistan.
Following the terrorist attacks on September 11, 2001,
General Mattis commanded the First Marine Expeditionary Brigade
and Naval Task Force 58 in operations against the Taliban in
southern Afghanistan. As a major general, he commanded the
First Marine Division during the initial attack and subsequent
stability operations in Iraq. In his first tour as a lieutenant
general, he was in charge of Marine Corps Combat Development
Command, and while there helped compile the U.S. Army/Marine
Corps Counterinsurgency Field Manual, the tenets of which have
been employed in Iraq and Afghanistan. Subsequently, he served
as Commander, I Marine Expeditionary Force/Commander, U.S.
Marine Forces in the Middle East. In 2007, General Mattis was
promoted to general, and served concurrently as the Commander
of U.S. Joint Forces Command and the North Atlantic Treaty
Organization's Supreme Allied Commander Transformation. He
established the Center for Advanced Operational Culture
Learning, a training academy for Marine Corps officers and
senior enlisted personnel, to instill cultural awareness and
language skills. In 2010, he took command of U.S. Central
Command, with responsibility for ongoing U.S. military
operations in Iraq and Afghanistan.
Since retiring from the U.S. Marine Corps in 2013, General
Mattis has been a visiting fellow at Stanford University's
Hoover Institution and taught courses on various subjects at
other colleges nationwide. He is co-editor of the book,
``Warriors & Citizens: American Views of our Military'', which
explores the paradoxes in American attitudes toward the U.S.
military and provides recommendations for civil-military
relations.
The principle of civilian control of the military
Civilian control of the Armed Forces is a long-standing
national principle, and the committee recognizes the importance
of considering the issues associated with its preservation in
the context of authorizing an exception to section 113 of title
10, United States Code, for General Mattis. Such consideration
was also central to the debate in September 1950, when Congress
last considered a legal exception for General of the Army
George C. Marshall.
While scholars and practitioners generally believe the
United States still adheres to the principle of civilian
control of the military, some have observed that civilian-
military relations have deteriorated over the past two decades.
These scholars and practitioners further worry that greater
deference to generals may lead to greater militarism in the
Department of Defense. Others worry that, as retired generals
engage more in the political arena, the risk of politicizing
the military grows. Some also question how such an appointment
might affect the Chairman of the Joint Chiefs of Staff's
ability to perform his statutory role as principal military
advisor to the President, and how the appointee would avoid
perceptions of bias towards the military branch he served in.
The committee notes that several leading scholars in
civilian-military issues, after considering these issues,
support the exception for General Mattis. One scholar concluded
that General Mattis is ``an exceptional candidate'' in
``exceptional circumstances,'' while another believes that
General Mattis can be a ``stabilizing and moderating force.''
His nomination has also been supported by several former
Secretaries of Defense.
General Mattis appears to understand the importance of
civil-military relations and of upholding the long-standing
principle of civilian control of the military. He testified to
the Senate Committee on Armed Services during his confirmation
hearing in January 2017, that he ``recognize[s] my potential
civilian role differs in essence and in substance from my
former role in uniform,'' and ``will provide strong civilian
leadership of military plans and decisions . . . [and] hold
senior military and civilian leaders accountable.''
The committee recommends authorizing a one-time exception
to section 113 of title 10, United States Code. The committee
believes that General Mattis is qualified to serve as Secretary
of Defense and that the country can once again benefit from his
leadership and public service.
HEARINGS
No hearings were held by the committee on H.R. 393.
However, after President-elect Trump announced on December
1, 2016, his intention to nominate General James N. Mattis,
USMC (Ret.) to the position of Secretary of Defense, the
committee convened two events to discuss issues related to any
potential legislation to provide an exception to section 113 of
title 10, United States Code.
On December 6, 2016, the committee received a briefing from
committee staff on the legislative background and history of
the statutory limitations on the position of Secretary of
Defense and an ``Act to authorize the President to appoint
General of the Army George C. Marshall to the office of
Secretary of Defense'' (Public Law 81-788). On December 7,
2016, the committee held an informal discussion with non-
government scholars and experts on civil-military relations.
COMMITTEE POSITION
On January 12, 2017, the Committee on Armed Services held a
markup session to consider H.R. 393. No amendments were offered
to the bill. The committee ordered the bill H.R. 393 favorably
reported to the House of Representatives by a recorded vote of
34-28, a quorum being present.
COMMITTEE VOTES
In accordance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, a record vote was taken with
respect to the committee's consideration of H.R. 393. The
record of this vote is contained on the following page.
committee on armed services
115th Congress
roll call vote no. 1
h.r. 393
Description: On motion by Mr. Wilson to adopt the bill,
H.R. 393, and report it favorably to the House, with a
recommendation that it do pass.
January 12, 2017.
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Member Aye No Present Member Aye No Present
----------------------------------------------------------------------------------------------------------------
Mr. Thornberry................ x ........ .......... Mr. Smith....... ........ x ..........
Mr. Jones..................... x ........ .......... Mr. Brady....... ........ x ..........
Mr. Wilson.................... x ........ .......... Mrs. Davis...... ........ x ..........
Mr. LoBiondo.................. x ........ .......... Mr. Langevin.... ........ x ..........
Mr. Bishop.................... x ........ .......... Mr. Larsen...... ........ x ..........
Mr. Turner.................... x ........ .......... Mr. Cooper...... ........ x ..........
Mr. Rogers.................... x ........ .......... Ms. Bordallo.... ........ x ..........
Mr. Franks.................... x ........ .......... Mr. Courtney.... ........ x ..........
Mr. Shuster................... x ........ .......... Ms. Tsongas..... ........ x ..........
Mr. Conaway................... x ........ .......... Mr. Garamendi... ........ x ..........
Mr. Lamborn................... x ........ .......... Ms. Speier...... ........ x ..........
Mr. Wittman................... x ........ .......... Mr. Veasey...... ........ x ..........
Mr. Hunter.................... x ........ .......... Ms. Gabbard..... ........ x ..........
Mr. Coffman................... x ........ .......... Mr. O'Rourke.... ........ x ..........
Mrs. Hartzler................. x ........ .......... Mr. Norcross.... ........ x ..........
Mr. Scott..................... x ........ .......... Mr. Gallego..... ........ x ..........
Mr. Brooks.................... x ........ .......... Mr. Moulton..... ........ x ..........
Mr. Cook...................... x ........ .......... Ms. Hanabusa.... ........ x ..........
Mr. Bridenstine............... x ........ .......... Ms. Shea-Porter. ........ x ..........
Dr. Wenstrup.................. x ........ .......... Ms. Rosen....... ........ x ..........
Mr. Byrne..................... x ........ .......... Mr. McEachin.... ........ x ..........
Mr. Graves.................... x ........ .......... Mr. Carbajal.... ........ x ..........
Ms. Stefanik.................. x ........ .......... Mr. Brown....... ........ x ..........
Ms. McSally................... x ........ .......... Mrs. Murphy..... ........ x ..........
Mr. Knight.................... x ........ .......... Mr. Khanna...... ........ x ..........
Mr. Russell................... x ........ .......... Mr. Peters...... ........ x ..........
Dr. DesJarlais................ x ........ .......... Mr. Aguilar..... ........ x ..........
Dr. Abraham................... x ........ .......... Mr. Castro...... ........ x ..........
Mr. Kelly..................... x ........ .......... ........ ........ ..........
Mr. Gallagher................. x ........ .......... ........ ........ ..........
Mr. Gaetz..................... x ........ .......... ........ ........ ..........
Mr. Bacon..................... x ........ .......... ........ ........ ..........
Mr. Banks..................... x ........ .......... ........ ........ ..........
Ms. Cheney.................... x ........ .......... ........ ........ ..........
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Roll Call Vote Total:......... 34 28 0 ........ ........ ..........
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CONGRESSIONAL BUDGET OFFICE ESTIMATE
In compliance with clause 3(c)(3) of rule XIII of the House
of Representatives, the cost estimate prepared by the
Congressional Budget Office and submitted pursuant to section
402 of the Congressional Budget Act of 1974 is as follows:
U.S. Congress,
Congressional Budget Office,
Washington, DC, January 13, 2017.
Hon. Mac Thornberry,
Chairman, Committee on Armed Services,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 393, 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.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is David Newman.
Sincerely,
Keith Hall.
Enclosure.
H.R. 393--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
Current law bars the appointment to the position of
Secretary of Defense of any person who has served on active
duty as a commissioned officer of the Armed Forces during the
previous seven years. H.R. 393 would waive that prohibition for
the next person appointed to the office. CBO estimates that
enacting H.R. 393 would have no budgetary effect.
CBO estimates that enacting H.R. 393 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 393 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is David Newman.
The estimate was approved by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
COMMITTEE COST ESTIMATE
Pursuant to clause (3)(d)(2)(B) of rule XIII of the Rules
of the House of Representatives, the Congressional Budget
Office Estimate included in this report satisfies the
requirement for the committee to include an estimate by the
committee of the costs incurred in carrying out this bill.
NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the committee finds that H.R.
393 would result in no new or increased budget authority,
entitlement authority, or tax expenditures or revenues.
ADVISORY OF EARMARKS
The committee finds that H.R. 393, as reported, does not
contain any congressional earmarks, limited tax benefits, or
limited tariff benefits as defined in clause 9 of rule XXI of
the Rules of the House of Representatives.
OVERSIGHT FINDINGS
With respect to clause 3(c)(1) of rule XIII of the Rules of
the House of Representatives, the committee reports that the
findings and recommendations of the committee are incorporated
in the descriptive portions of this report.
GENERAL PERFORMANCE GOALS AND OBJECTIVES
In compliance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the general goal and objective
of H.R. 393 is to authorize the Senate to consider the
nomination of General James N. Mattis, USMC (Ret.) to the
position of Secretary of Defense. The legislation does not
authorize any funding.
STATEMENT OF FEDERAL MANDATES
Pursuant to section 423 of Public Law 104-4, this
legislation contains no Federal mandates with respect to state,
local, and tribal governments, nor with respect to the private
sector. Similarly, the bill provides no Federal
intergovernmental mandates.
FEDERAL ADVISORY COMMITTEE STATEMENT
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
APPLICABILITY TO THE LEGISLATIVE BRANCH
The committee finds that this legislation does not relate
to the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act (Public Law
104-1).
DUPLICATION OF FEDERAL PROGRAMS
No provision of H.R. 393 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
DISCLOSURE OF DIRECTED RULE MAKINGS
The committee estimates that H.R. 393 requires no directed
rule makings.
SECTION-BY-SECTION ANALYSIS OF LEGISLATION
Section 1--Exception To Limitation Against Appointment of Persons as
Secretary of Defense Within Seven Years of Relief From Active Duty as
Regular Commissioned Officers of the Armed Forces
This section would authorize the President to appoint, by
and with the advice and consent of the Senate, an individual as
Secretary of Defense who is within 7 years, but not less than 3
years, of relief from Active Duty as a commissioned officer of
a regular component of the Armed Forces. The legislation
applies only to the first person appointed after enactment of
this Act.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, H.R. 393 would not make any
changes to existing law.
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