69–006 

115TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 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 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 


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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 


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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 civilianmilitary 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 


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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 civilmilitary 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 civilmilitary 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. 


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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. 

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 

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. 


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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. 


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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. 

Æ 


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