A Conservative Response: Confirming Mattis is Constitutional and Reasonable

Streiff has authored a post playing the devil’s advocate against the Mattis nomination for Secretary of Defense. This is to be commended. We, as citizens, have to be willing to engage in introspection, even on policies and nominations we support, if we truly want to govern in a wise and honest manner. But in the interest of dialogue and debate I think it’s worth responding to his post from a conservative point of view.

If you do not feel like reading Streiff’s post – which you should for the reasons I just gave about introspection, debate and honesty – it boils down to the law and the reasoning behind it. 10 U.S.C. sec. 113(a) clearly states that commissioned officers cannot serve as Secretary of Defense until 7 years have elapsed between their retirement and assumption of office. The reasoning for this is to reinforce civilian control of the military. This is not articulated anywhere in the Constitution but is clearly deduced from Art. II, Sec. 2, Cl. 1 of the Constitution which gives the President, a civilian, control of the military as Commander-in-Chief. So what the 80th Congress was doing when it passed this statute was adding an additional layer between the military and civilian leadership. This isn’t an inherently bad idea but the execution is suspect.

As Shannen Coffin at National Review pointed out there are some constitutional hang ups with the law. First and foremost, Congress cannot tell the President who he can or cannot nominate. Trump has the prerogative to build his cabinet and administration how he sees fit and their role is to merely advise and consent. So from one aspect of the law, Congress has overstepped its bounds which violates the separation of powers.

The obvious response to this is “Congress isn’t telling him who he can nominate. They’re just setting a condition of their consent.” This is all well and good. If a senator thinks that a commissioned officer is simply too close in time to their military service to serve as Secretary of Defense then that senator can vote not to confirm. The problem is which senator thinks that. As previously noted, it was the 80th Congress which passed the statute at issue here. But the 115th Congress, which will sit during Trump’s first two years, is not bound by any acts of the previous Congresses. This is a problem known as legislative entrenchment where one session of the legislature seeks to bind a future session to its will. However, the Supreme Court has held that such binding is unconstitutional. So now were confronted with the problem: Can the 80th Congress really tell the 115th Congress what criteria it must use in order to confirm a person as Secretary of Defense? The Constitutional answer is no, it cannot.

I also think there’s a legitimate issue of standing here as well. Presume that Mattis gets nominated, is the Trump administration then going to sue Congress for violating that act by confirming him? Seems absurd. Equally absurd is the idea that the senate will sue itself for violating the act. And what exactly is the remedy for such a case? A Court cannot “fire” a cabinet level appointment. He leaves at the pleasure of the president, of his own will or is impeached for cause. There is also a legitimate question of whether a court would even hear such a case. A judge could very well determine that who gets nominated Secretary of Defense and by what means is a political question. As long as that person was nominated by the President and the nomination was confirmed by a vote in the Senate the Constitutional requirements are met. Whether or not a recently retired military official should be the Secretary of Defense is patently a policy question. And whether or not the Senate should even consider the nomination would be an issue of congressional rules of proceedings which the Courts cannot review.

I have more personal feelings about why I don’t think Mattis being nominated is a bad thing but since this post is a response to another post I will limit myself to the stated scope. I believe I have adequately addressed any conservative concerns about the Mattis nomination. The law rests upon a flimsy constitutional foundation which in one aspect violates the separation of powers and in the other would allow a previous session of congress to bind the will of a future session of congress which the Supreme Court has ruled is unconstitutional. Finally, there are matters of standing, in regards to who is injured and what is the remedy, that are not readily apparent and even if they were the Courts could very well refuse to hear the case based on the political question doctrine.

If we as conservatives are truly concerned about the rule of law then we must determine whether a law is constitutional before we insist on adherence to it. In this case, I don’t believe the law passes muster so the nomination and confirmation of General James Mattis should proceed.