Statutory Restrictions on the Position of Secretary of Defense: Issues for Congress
Released: 2017-01-05T00:00:00

Introduction

This report is designed to assist Congress as it considers how to proceed with the proposed nomination of General (Ret.) James Mattis to be Secretary of Defense. After exploring the history of the statutory restriction and its evolution over time (see " Preserving Civilian Control of the Military in the 1947 Act and Restricting the Position of Secretary of Defense "), it touches upon some of the broader questions that have recently been raised in the public debate on whether, and how, this proposed nomination might impact civilian-military relations and the principle of civilian control of the military.

The Principle of Civilian Control of the Military

How to advance the nation's security while at the same time ensuring that instruments of force do not undermine the practice of American democracy has been a central question since the founding of the United States, if not before. The principle of civilian control of the military places ultimate authority over U.S. armed services in the hands of civilian leadership, with civilian responsibility and control of the military balanced between the executive and legislative branches of the government. In some ways, the relationship between the military and the civil society it serves can be thought of as a paradox: the military, by its very nature, has coercive power that could threaten civil society. Yet without a sufficiently strong and capable military, civil society becomes vulnerable to attack, and the former might not be able to defend the latter. The United States has balanced this tension through formulating and promulgating the principle of civilian control of the military. The fact that this principle has remained relatively unchallenged over the course of American history is, by most accounts, remarkable. This section briefly outlines the history of the principle of civilian control of the military, and how it influenced legislation over time.

Origins of the American Principle of Civilian Control of the Military3

The designers of the Constitution were deeply skeptical of a standing military as, much like Oliver Cromwell demonstrated in 1653 when he used his army to disband Parliament, such a military instrument could also overthrow the government it professed to serve. Indeed, consternation regarding the British deployment of its military to the American colonies without the consent of local governing officials was among the key grievances listed in the Declaration of Independence and helped inform the Third Amendment of the Constitution. Applied to the context of a new, experimental, and democratic Republic, the Founding Fathers believed that subordination of the military to the authority of civil masters was critically important in order to prevent the emergence of a new form of tyranny or dictatorship.

The principle was put to the test even before the American state was founded. During the Revolutionary War, particularly, upon the surrender of Cornwallis at Yorktown, the prestige of the American military was at its height, while regard for the Continental Congress—the civilian authority to which General George Washington reported—was dwindling. Had Washington, a popular figure at the time, been any less devoted to democratic principles, a New World variety of despotism might have been established. Indeed, there were ample opportunities for General Washington to install himself as a dictator—which would likely have had the end result of swapping one form of monarchical rule for another. As the war drew to a close, a group of his associates, cognizant of the impotence of the American Confederation, begged him to set himself up as the authoritarian head of a new government. Washington refused, arguably preventing the emergence of a military-authoritarian government in the process.

Subsequent to the Revolutionary War, the fragility of the Confederation government was highlighted by the 1786 Shays rebellion, the first armed rebellion in the post-Revolutionary United States . The Shays Rebellion was a local uprising in Massachusetts in response to high taxes and difficult economic conditions. In September 1786, Captain Daniel Shays, along with other Massachusetts leaders, led several hundred armed men to close some local courts in order to prevent the execution of foreclosures and other debt processes. In January 1787, Shays led approximately 1,200 men in an attack on the federal arsenal at Springfield, MA. The local Massachusetts government put down the rebellion in February 1787. While the rebellion itself was small, and was quickly suppressed, for some it became a compelling argument for why the United States needed a stronger national-level government, including a standing army and militia. The challenge was how to do so while at the same time preventing the emergence of a national military that could threaten the new Republic .

Civilian Control of the Military: Congressional and Executive Branch Responsibilities9

Accordingly, the Founding Fathers designed a system of civilian control of the military in a manner that conformed with its overall architecture of checks and balances. An elected President was designated the Commander-in-Chief of the nation's armed forces. This had the dual advantage of ensuring that an elected civilian leader presided over the nation's army while at the same time enhancing unity of command over the military. The President was also granted the ability to commission military officers, authority to appoint Secretaries to preside over military services, and the responsibility to regularly report to Congress on the state of the union.

The desire to ensure that the military reflected, and was subordinate to, the will of the people also led to considerable congressional powers on matters concerning the armed services. Congress was granted the power to lay and collect taxes for the common defense. Congress was also given the sole power to declare war, the ability to raise and support armies, establish rules and regulations for the army, navy, and militias when in service of the United States. Finally, to hamper the establishment of a permanent, standing military, a provision was made specifying that no appropriation of money could be made for the army for a period longer than two years.

The Military Culture of Respecting Civilian Control

This governance architecture was necessary, but not sufficient, to ensuring civilian control of the military. Here again, George Washington played a vital role in establishing the norms and culture that formed the foundation for American relationships between the military and the civilian leadership it served (also referred to as "civil-military" or "civilian-military" relations). For example, in putting down the 1794 Whiskey Rebellion in western Pennsylvania, President Washington ensured that his subordinates understood the importance of upholding civil rule of law while doing so. Despite disagreements—sometimes vehement—between military and civilian leaders throughout the nation's history, contemporary scholars of civil-military relations have noted that these norms, inculcated and promulgated by Washington and his successors, remain robust.

Keeping the Standing Army Small

Another reflection of American skepticism towards a standing army—and the desire to ensure that it remained under civilian control—was a general policy to keep the peacetime active duty army relatively small. Indeed, from the founding of the nation to the Cold War era, the bulk of force structure was maintained in the reserve component (especially the militia/National Guard), except in times of major conflicts. When major conflicts arose—such as the Civil War, World War I, and World War II—the comparatively small active component was expanded through the activation of militia and federal reserves, recruitment of additional volunteers for the active component, and the use of conscription. At the end of the conflict, active force levels were dramatically reduced. For example, in 1916, the end strength of the active duty military was approximately 179,000 personnel; over the course of World War I, this grew to nearly 2.9 million. After the war's conclusion, U.S. military end strength decreased to approximately 250,000. Similarly, in 1939, there were fewer than 350,000 active duty personnel in all branches of the U.S. armed forces. During World War II, this number grew enormously, reaching over 12 million servicemembers on active duty by 1945.

While this approach to organizing for military campaigns generally suited the preferences of the American people and its leaders—and in particular, their overall skepticism towards a standing army—it came at the expense of preparedness. This resulted in the expenditure of more American blood and treasure during wartime than would have happened if there had been greater peacetime investment in the armed forces, an issue that was apparently not of great concern until World War II.

World War II and the National Security Act of 1947

For the first century and a half of the United States' history, the architecture designed at the Constitutional Convention, combined with the American military cultural norm of respecting civilian control of the military and the preference to disband the military after cessation of hostilities, served to largely circumscribe the armed forces and prevent them from becoming overly dominant within the U.S. government. After World War I, the concept of a single defense establishment was considered around Washington, but the military services opposed such proposals and blocked their serious consideration. Yet it was the experience of World War II—the surprise of Pearl Harbor, America's initial lack of preparedness, and a deficiently structured military organization to wage the campaign—that forced a serious reconsideration of the design of U.S. institutions associated with national security, and in particular, the military. The old way of doing business was no longer viewed as sufficient by most observers at the time. To that end, Congress began considering how to restructure its national security institutions as early as 1944, although it did not entertain serious recommendations and proposals until after the conclusion of the war.

On December 6, 1945, President Truman submitted a letter to Congress arguing that the existing War and Navy Departments should be combined into a single Department of National Defense. Until that time, the Departments of War and Navy operated separately, each headed by a cabinet-level Secretary, with the effective execution of military operations relying on voluntary coordination between the departments. President Truman contended that such voluntary coordination was inadequate and argued for the integration of the military services into a single department, which would report to a new cabinet-level advisor on matters of national defense. The merits and risks of creating a new Department headed by a single individual were therefore vigorously debated by the military services, the executive branch, and Congress between 1944 and 1947.

Opposition to a New Department of National Defense28

Although the United States has utilized a variation of Truman's proposed system of military governance for the past 60 years, there was, at the time, considerable pushback against his ideas. The proposal was controversial for at least three reasons. First, while demobilization of the Armed Forces took place at a rapid pace, peacetime force levels after 1947 were still at around 1.5 million—considerably higher than the 1939 end strength of less than 350,000. Although the public tended to support a standing military of this size, this larger standing military, combined with Truman's proposal for universal military training, cultivated a sense of unease about departing from the country's tradition of peacetime mobilization as a component of maintaining civilian control of the military. This sense was compounded in the wake of the use of atomic weaponry, which highlighted the notion that future wars might not be decided by armies in the field.

The second concern about this new military organization was the notion of centralization of military governance, especially considering the enormous popularity of the military and its senior U.S. general and flag officers at the conclusion of World War II. Five-star officers such as the Army's George C. Marshall, Douglas MacArthur, Henry (Hap) Arnold and Fleet Admirals William D. Leahy, Ernest King, Chester Nimitz, and William F. (Bull) Halsey, Jr. had commanded millions of men and thousands of tanks, airplanes, and ships—both U.S. and allied—in an unprecedented endeavor to defeat the Axis powers. In addition to field command, they played a central role in formulating both U.S. and allied grand strategies and military strategies in Washington and abroad. These men enjoyed a heroic reputation and were treated to ticker tape parades, addressed joint sessions of Congress, and some were even considered as presidential contenders.

By contrast, outside Presidents Roosevelt and Truman, few if any senior Administration officials or Members of Congress enjoyed a similar status among the American people, during or after the war. At a personal and political level, these current and future senior general and flag officers might have been viewed as being a bit too powerful—not unlike the proconsuls of the Roman Empire. Given these concerns, legislators might have considered a ten year gap in service as ample time for their "stars to fade" as well as for their influence to diminish to an acceptable level.

Mixed in with the debate on how to best design a new military organizational structure were service rivalries which translated into deep differences of opinion between the Departments of War and the Navy about whether to reorganize under a single department. While the Army argued for bringing the departments together under a single civilian authority, the Navy maintained that doing so—thereby removing the cabinet-level status of Service secretaries—would overly empower a single individual. Ultimately, as 1947 approached, it became clear that President Truman's preference for a single civilian Secretary of National Defense would prevail, against the protests of the Department of the Navy. Subsequently, debates about the new Secretary of National Defense were occasionally peppered with concerns about whether, under this new construct, the Department of the Navy might have primacy over the Department of War (or vice-versa), especially if the new Secretary had served in one service or the other.

Taken together, these three factors appear to have raised concerns that one byproduct of World War II might be the over-militarization of American society—a development that Truman himself feared. Added to this, the creation of a new Department of National Defense, under a single Secretary, caused many to wonder whether doing so might make the new defense establishment too powerful relative to the rest of the U.S. government, thereby undermining the principle of civilian control of the military. Yet several key post-war developments, in particular the rise of Soviet aggression, the belief that occupation and reformation of Germany and Japan was necessary to produce long-term peace, and the near-collapse of the British empire, underscored to many American leaders that the United States would need to assume a greater share of the burden for promoting international stability than ever before. Greater U.S. involvement in the world therefore necessitated more serious consideration of how the institutions governing the military might be better organized. The problem of peacetime military and national security organization could no longer be ignored. The question then became how to establish this new, overarching department in a manner that addressed the concerns of the day—in particular, managing inter-service rivalry—while preserving the principle of civilian control of the military.

Preserving Civilian Control of the Military in the 1947 Act and Restricting the Position of Secretary of Defense

The overall intention of the 1947 National Security Act was to ensure that the American instruments of national security and defense might be better prepared and organized in order to meet the challenges presented by the post-war period and the dawn of the Cold War. As such, in designing a new National Military Establishment (which would subsequently be redesignated as the Department of Defense), Congress sought to create greater unity of command while at the same time ensuring that the institution they were creating—and the individuals they would be empowering to lead it—would not threaten the principle of civilian control of the military.

As enacted in 1947, Section 202 of the National Security Act (later codified as 10 U.S.C. §113) stipulated that a person "who has within ten years been on active duty as a commissioned officer in a Regular component of the armed services shall not be eligible for appointment as Secretary of Defense." This provision emerged from conference negotiations—while both the House and Senate bills required the Secretary of Defense to be a civilian appointed by the President, the House bill specified that the Secretary of Defense "shall not have held a commission in a Regular component of the armed services." Historic congressional documentation is silent on the specific reasons for arriving at this compromise. However, one can infer from the statements made by Members of Congress as they debated the 1947 act, as well as the historical context at the time, that some viewed a break between military service and a Secretary of Defense appointment as desirable. This would help ensure that no one military service dominated the newly established Defense Department; ensure that the new Secretary of Defense was truly the President's (rather than a service's) representative; and, again, preserve the principle of civilian control of the military at a time when the United States was departing from its century-and-a-half long tradition of a small standing military.

Suspending the Restrictions on Prior Military Service of the Secretary of Defense: The Appointment of General Marshall

The new national security architecture—and the restrictions imposed upon the new Secretary of Defense position—were quickly put to the test as the United States became involved in the Korean War. Increasingly displeased with Secretary of Defense Louis A. Johnson, and recognizing the need to "choose a person of great national prestige to head the Department of Defense" in light of the "controversy surrounding Johnson's performance" and U.S. military readiness deficits exposed by the first months of the Korean War, President Truman approached General Marshall in early September 1950 to ask if he would "act as Secretary of Defense through the crisis [of the Korean War] if [President Truman] could get Congressional approval."

By 1950, General Marshall already had a distinguished career , having served in senior civilian and military positions, both in and out of the U.S. g overnment. General Marshall was one of four World War II-era Army generals first temporarily designated as a five-s tar General of the Army in 1944, retiring in 1947 from that rank. In November 1945, T ruman sent Marshall to China in an unsuccessful attempt to mediate the civil war between Nationalists and Communists . He returned to th e United States in January 1947 to become secretary of state for two years , a position w ithout statutory restrictions . In that capacity, he presided over the formulation of t he Truman Doctrine, the Marshall Plan, the Inter-American Treaty of Reciprocal Assistance, and negotiation of the NATO pact. After he left the State Department he achieved further distinction as president of the American Red Cross.

In 1949, General Marshall was returned by his request to "the active [duty] list of the Regular Army on March 1, 1949." For administrative purposes following his restoration to the Army active duty list, General Marshall was assigned to the Office of the Chief of Staff of the Army. In this role, General Marshall had no official position in the Army command structure, and had minimal official military duties and responsibilities.

General Marshall accepted President Truman's request to nominate him as Secretary of Defense, on the condition that if confirmed, his tenure would be limited to a period of six months to a year. Accordingly, on September 13, 1950, President Truman forwarded a legislative proposal to the House and Senate Armed Services Committees that addressed two restrictions in statute that would otherwise prevent Marshall's nomination. These included 10 U.S.C. §113 (described earlier in this report) and 10 U.S.C. §576, which, at the time, barred officers on the active list of the Army from holding civil office, either by election or by appointment, and stipulated that officers who accepted or exercised the functions of a civil office had to vacate their commissions, thereby ceasing to be an officer of the Army. In a cover letter accompanying the proposal, the President addressed the committee heads, Truman noted:

Attached is a draft of legislation which would permit General George C. Marshall to serve as Secretary of Defense. I request that you lay this matter before your committee with a view of obtaining early and favorable action by the Congress. I am a firm believer in the general principle that our national defense establishment should be headed by a civilian. However, in view of the present critical circumstances and General Marshall's unusual qualifications, I believe that the national interest will be served best by making an exception in this case.

While the measure had the support of many Members, it also encountered significant opposition from other Members, both at the committee and floor levels in each chamber. Supporters of the bill contended that the crisis of the ongoing Korean War justified making an exception to the relevant statutes for General Marshall, who was viewed as uniquely and exceptionally qualified for the position. Opponents of the measure asserted that the principle of civilian control over the military superseded all other considerations, including General Marshall's personal qualifications and the pressure of external circumstances. (For a detailed legislative history, see the Appendix .) As enacted, P.L. 81-788 suspended, for General Marshall's nomination only, those two statutory provisions preventing his consideration for the position of Secretary of Defense. P.L. 81-788 also included a nonbinding section outlining congressional intent in providing President Truman with the authority to nominate General Marshall:

It is hereby expressed as the intent of the Congress that the authority granted by this Act is not to be construed as approval by the Congress of continuing appointments of military men to the office of Secretary of Defense in the future. It is hereby expressed as the sense of the Congress that after General Marshall leaves the office of Secretary of Defense, no additional appointments of military men to that office shall be approved.

President Truman submitted the nomination of General Marshall to be Secretary of Defense to the Senate on September 18, 1950. The Senate Armed Services Committee held a confirmation hearing for General Marshall on September 19, 1950, and favorably reported the nomination to the Senate on the same day.

While the question of civilian control of the military was discussed during the confirmation hearing, it was not the only issue raised, as General Marshall was also asked to address questions on a variety of other topics. When asked by Senator Lyndon B. Johnson if he had made any public statements "on the necessity for ... civilian control" of the Department of Defense, Marshall replied:

I just made one reference, not with respect to the Secretary of Defense himself, but in connection with representation on the National Security Council, that I objected in writing, when I was Secretary of State, to having three representatives of the fighting services on that Council. I thought that representation was out of balance. It ought to be more civil and less military. I made that representation about the second week I was Secretary of State. I also suggested, although I do not think that it was done in writing, that the Council should have two or three men, civilians you might say without portfolio, sitting on it. I thought that would be a very valuable contribution.

Now, to go directly to your question, the only statement I recall having made was when as a second lieutenant, that I thought we would never get anywhere in the Army unless a solider was Secretary of War. As I grew a little older and served through some of our military history, particularly the Philippine Insurrection, I came to the fixed conclusion that he should never be a solider.

The Senate voted to confirm General Marshall's nomination to the office of Secretary of Defense on September 20, 1950, by a vote of 57-11, with 28 Senators not voting.

Statutory Changes to the Restriction on Secretary of Defense Eligibility in the FY2008 National Defense Authorization Act (P.L. 110-181)

Since the enactment of the National Security Act of 1947, the statutory qualification provision associated with prior military service of the Secretary of Defense has been modified once.

In January 2007, Representative Walter B. Jones introduced H.R. 417 , which would have reduced the eligibility requirement to three years. The provision was adapted and included in the House Armed Services Committee (HASC) Chairman's mark of H.R. 1585 , the initial House version of the FY2008 National Defense Authorization Act (NDAA). As reported to the House on May 11, 2007, by the HASC, H.R. 1585 contained a provision (Section 903) that would amend sections 113, 132, and 134 of Title 10, U.S.C., to reduce from 10 years to 5 years the period of time following active duty military service before a commissioned officer of a regular component could be appointed as Secretary of Defense, Deputy Secretary of Defense, or Under Secretary of Defense for Policy. In a May 2007 press release, Representative Jones described the language as "[reducing] an outdated prohibition and [enabling] the President to choose from a greater pool of qualified candidates with relevant military expertise."

As the Senate amendment to the House bill contained no similar provision, a compromise was reached during conference committee negotiations. As enacted, Section 903 of the FY2008 NDAA ( P.L. 110-181 ) reduced from 10 to 7 years the required interval between an individual's retirement from active duty as a commissioned officer of a regular component of the armed services and eligibility for service as Secretary of Defense, Deputy Secretary of Defense, or Under Secretary of Defense for Policy.

Civil-Military Relations Today and the Nomination of General Mattis

Similar to the debates surrounding the nomination of General Marshall in 1950, many observers agree that General Mattis is qualified to take on the role of Secretary of Defense. The key contrast between the debates 66 years ago and today is that the public discussion surrounding the proposed nomination of General Mattis seems to be less about preserving the principle of civilian control of the military (although that is certainly being debated), and more about civilian-military relations more generally. Very few observers, if any, appear concerned that General Mattis, if appointed to the position of Secretary of Defense, will compromise the longstanding American tradition of ensuring that the military remains subordinate to the authority of civilian leaders. Instead, the possible appointment of General Mattis has served as a catalyst for a more wide-ranging discussion on a key question he raises in his own book: whether 40 years of an all-volunteer force—of which, the last 15 have seen continuous war—has significantly altered the ways in which the U.S. military, civil society, and civilian leaders relate to each other. Several observers maintain that after the end of the Cold War, but particularly since 9/11, frictions and unhealthy tensions have emerged between the military and its civilian leadership, although few contend that these tensions might meaningfully challenge the principle of civilian control.

The ongoing discussion suggests that perceptions regarding the wisdom of nominating a recently retired military officer to the position of Secretary of Defense tend to be largely predicated upon one's opinions on the overall health of the broader civilian-military relationship. In the view of some, overreliance upon recently retired generals to fill key national security and government leadership positions—including that of the Secretary of Defense—is "dangerous," as doing so might upset the balance between the military and the rest of the government. To others, focusing on whether an individual has had prior military experience obfuscates a more important and substantive conversation on the meaning of the principle of civilian control of the military today. According to this view, rigid adherence to a formal, and superficial, interpretation of civilian-military relations is "dangerous" in an era when both state and non-state actors possess means of coercion and the lines between "civilian" and "military" spheres is increasingly blurred.

Other key questions that have emerged as part of the discussion include (but are not limited to) the following:

In formulating and executing national security policy, what are the appropriate roles and responsibilities between civilian leaders and the military? In contrast to the "normal" model of civilian-military relations, whereby the civilians formulate guidance and give their military counterparts relatively wide latitude to execute that guidance, leaders—particularly during wartime—often play a more hands-on role. Some view the degree of greater involvement by civilians as damaging, while others maintain that the complexity of contemporary military operations, combined absence of more effective coordination mechanisms across the U.S. government have necessitated greater civilian involvement in military matters. One symptom of this greater civilian involvement is the growth of the National Security Council's (NSC) size. This has, in turn, led to concerns about civilian "micromanagement" of the Department of Defense by the NSC. These concerns led Congress to pass a provision in S. 2943 , the FY2017 National Defense Authorization Act, limiting the size of its professional staff to 200 persons. Related, does the fact that the U.S. military is a relatively small, all-volunteer force in which a small proportion of the population has served make it harder for the public to understand the military as an institution, and vice-versa? Is the all-volunteer force construct making it more difficult for civilian leaders to understand the military as a profession and the utility of force in accomplishing national security objectives? Will appointin g a recently retired General to the position of Secretary of Defen se affect the Chairman of the Joint Chiefs of Staff's ability to perform his statutory role as principal military advisor to the President? Determining that the Joint Chiefs of Staff was structurally incapable of providing quality military advice to the President, the Goldwater-Nichols 1986 Department of Defense Reform Act ( P.L. 99-433 ) sought to empower the Chairman to better perform his advisory responsibilities. Might the appointment of a recently retired four-star general risk creating a rival source of military advice to the President? Migh t the appointment of a recently retired General such as Mattis create the risk of politicizing the military ? Overall, the military, as a profession, takes great pains to ensure that it stays apolitical so as to help ensure that the Commander-in-Chief has respect for the integrity of the military advice provided to them. In taking a senior, cabinet-level position such as that of Secretary of Defense, might this change the President's view regarding whether the advice they are receiving from their military advisors is truly apolitical? This question is gaining increasing resonance, as Kori Schake, citing evidence gathered for her book on civil-military relations that she co-edited with General Mattis, finds that political elites are increasingly viewing the military as "just another actor in political debates." Somewhat related, what are the messages that the military forces more broadly are taking from this appointment? Might it suggest to some that affiliation with a political party is key to advancement to senior levels of the government? Has U.S. foreign policymaking been over-militarized, and would the appointment of General Mattis make it even more so? Particularly after the terrorist attacks of September 11, 2001, many scholars and practitioners have argued that U.S. foreign policy has become more "militarized." As evidence, these observers point to (among other things) the growth of DOD's role in security cooperation, the heightened stature and power of combatant commanders relative to ambassadors, and the dominance of defense spending relative to other international affairs spending. According to this view, the militarization of foreign policy also represents an ends-ways-means disconnect, as many of the security challenges the United States faces requires comprehensive, "whole-of-government," rather than solely military, solutions. Some therefore maintain that the appointment of a recently retired General to the position of Secretary of Defense might further exacerbate that trend. Others, however, note that while in uniform General Mattis argued for more resources to be allocated to the Department of State as a means to start correcting that imbalance. What is the role of Congress in the civilian-military relationship ? Debates and discussions on civil-military relations have tended to focus on the military's relationship with civil society broadly, or with the commander-in-chief and their political appointees. Yet the Constitution, by ensuring that key responsibilities for the raising and maintenance of U.S. armed forces were granted to the legislative branch, arguably intends for Congress to also play a role in exercising civilian control of the military which, in turn, can influence the overall health of civil-military relations. Indeed, as some policymakers and observers have noted, the manner and process through which Congress considers this appointment may have a bearing on whether the principle of civilian control of the military is upheld.

Current State of Play

As the 115 th Congress convenes, one of the first matters it will likely need to take up concerns whether to allow General Mattis's nomination to the position of Secretary of Defense to be considered by the Senate. This section details the current state of play and highlights several possible legislative courses of action.

Expedited Procedures Governing Senate Consideration of Legislation Waiving a Restriction Related to the Military Service of the Secretary of Defense66

Section 179 of the Further Continuing and Security Assistance Appropriations Act, 2017 ( P.L. 114-254 ), establishes special "fast track" procedures governing Senate consideration of a bill or joint resolution which would suspend the seven-year restriction contained in 113(a) of Title 10 of the U.S. Code . It does so for the first person nominated to be Secretary of Defense after enactment of P.L. 114-254 who has been retired at least three years.

In order to qualify for the expedited procedures, waiver legislation must be introduced during a 30-calendar day period which begins on the date that the 115 th Congress convenes. The legislation may be introduced by the Senate Majority Leader or the Minority Leader, or their respective designees, or by the Chair or Ranking Minority Member of the Committee on Armed Services. Both the title of the legislation and the matter after the enacting (or resolving) clause are stipulated.

Once introduced, the legislation is to be referred to the Senate Committee on Armed Services. If the committee has not reported the waiver legislation within five session days after the date of its referral, it is automatically discharged of the further consideration of the measure.

Once pending on the Senate Calendar of Business (either by being reported or by the committee being discharged) it is in order to make a non-debatable motion to proceed to consider the legislation. This motion may be repeated if it has previously been disagreed. All points of order against the waiver legislation and its consideration are waived.

If the Senate adopts the motion to proceed, the waiver legislation would be pending and the Senate would consider the measure until it has disposed of it. There would be up to 10 hours of debate, divided and controlled by the party floor leaders or their designees. A nondebatable motion to further limit debate is in order. Amendments and potentially dilatory motions are barred. At the conclusion of debate, and after an optional quorum call, the Senate would automatically vote on passage of the waiver legislation.

Passage of the waiver legislation in the Senate requires an affirmative vote of three-fifths of Members chosen and sworn—60 votes if there is no more than one vacancy in the Senate—the same threshold required for cloture on most legislation. The expedited procedures contained in Section 179, however, would permit the Senate to call up and reach a final vote on the waiver legislation without expending the same amount of floor time that could be necessary to call the waiver legislation up under the Standing Rules of the Senate and reach a vote thereon through the cloture process. In this regard, arguably the primary benefit of the Section 179 procedures is that they are a time saver.

Should waiver legislation be subsequently vetoed, Senate consideration of a veto message would be limited to up to 10 hours. Because these "fast track" procedures are enacted as a Senate rule in law, the Senate could adjust the provisions described above in whole or in part by unanimous consent. Section 179 of P.L. 114-254 does not establish any expedited procedures providing for House consideration of waiver legislation. Presumably such legislation would come to the House floor under the terms of a special rule reported by the House Committee on Rules, or depending on its level of support, under the Suspension of the Rules procedure.

Should waiver legislation ultimately be enacted, 10 U.S.C. 113(a) would no longer apply to General Mattis. The Senate would still, however, have to consider and confirm his nomination.

Basic Legislative Options

Notwithstanding the legislation recently enacted that would streamline Senate consideration of legislation to waive the statutory prohibition against recently retired officers from serving as Secretary of Defense, Congress may pursue other legislative options, including choosing to (1) suspend the statutory limitation; (2) eliminate entirely or reduce the limitation; or (3) take no action regarding the statutory limitation.

Suspend the statutory requirement that seven years elapse between relief from active duty and appointment to p osition of Secretary of Defense . This would require the enactment of legislation similar in nature to P.L. 81-788, which created a one-time suspension of statutory requirements for General Marshall. Proponents of this option believe this would enable the Senate to proceed with confirming General Mattis while at the same time upholding the principle of civilian control of the military by requiring participation of the House of Representatives in the process. Opponents might suggest that the provision is, itself, outdated. Eliminate entirely or reduce the statutory requirement that seven years elapse between relief from active duty and appointment to posit ion of Secretary of Defense . Much like the discussion surrounding the FY2008 National Defense Authorization Act, proponents of this option would likely maintain that the provision in Title 10 U.S.C. is outdated, and that the President should have maximum flexibility to appoint whomsoever they might wish to the position. Opponents to this course of action might maintain that doing so could risk the politicization of the military. Choosing not to pass legislation that would remove statutory barriers to the appointment of General Mattis as Secretary of Defense , thereby "blocking" his nomination . Proponents of this option might contend that a recently retired military officer serving in the position of Secretary of Defense might undermine the principle of civilian control of the military. Opponents would likely maintain that, much like the nomination of General Marshall, General Mattis is exceptionally qualified and supports the principle of civilian control of the military. Related, should Congress choose not to pass relevant legislation, the Senate may choose to allow General Mattis's nomination to proceed, regardless. It is currently unclear what the legal implications of pursuing this option might be. Still, proponents of this option might contend that the language contained within Title 10 U.S.C. is unconstitutional, as it restricts the ability of the President to nominate whomsoever they might wish to their cabinet. Opponents maintain that the Constitution gives Congress considerable authority over military matters, and that the provision has been in statute for almost 70 years.

Appendix. Legislative History of the Appointment of General George C. Marshall to the Position of Secretary of Defense69

This appendix provides the legislative history associated with the September 18, 1950, enactment of P.L. 81-788 ("An act to authorize the President to appoint General of the Army George C. Marshall to the office of Secretary of Defense"), which authorized the suspension of certain statutory requirements otherwise prohibiting General of the Army George C. Marshall from serving as the Secretary of Defense.

P.L. 81-788 was introduced at the request of President Harry Truman, and it was considered by the House and Senate over a period of four days in September 1950. While the measure had the support of many Members, it encountered significant and, at times, heated opposition by other Members, both at the committee and floor levels in each chamber.

Background

Increasingly displeased with Secretary of Defense Louis A. Johnson, and recognizing the need to "choose a person of great national prestige to head the Department of Defense" in light of the "controversy surrounding Johnson's performance" and U.S. military readiness deficits exposed by operations during the first months of the Korean War, President Truman approached General Marshall in early September 1950 to ask if he would "act as Secretary of Defense through the crisis [of the Korean War] if [President Truman] could get Congressional approval." General Marshall accepted, on the condition that if confirmed, his tenure as Secretary of Defense would be limited to a period of six months to a year.

President Truman informally requested Johnson's resignation in a private meeting on September 11:

Although Truman initially granted Johnson's request for a few days to think it over, the president called [Deputy Secretary of Defense Stephen T.] Early on 12 September to urge that Johnson resign immediately and recommend George C. Marshall as his successor. Resigning forthwith himself, Early gathered a small [Office of the Secretary of Defense] group to help compose a letter of resignation for Johnson to take to the Cabinet session that afternoon. Still hoping for a reprieve, Johnson took the unsigned letter with him, but when the two men met alone, Truman told the reluctant and distraught Johnson that he would have to sign.

As instructed, Johnson's resignation letter recommended that General Marshall should succeed him as Secretary of Defense:

it is my recommendation that [you] name as my successor a man of such stature that the very act of naming him to be Secretary of Defense will promote national and international unity. Such a man, in my opinion, is General George Marshall.... I recognize, of course, that many will argue that one of our great Generals should not be Secretary of Defense. I do not believe that this argument has validity in the case of General Marshall, who has already rendered distinguished service to his country, in a civilian capacity, as Secretary of State. I recognize also that an amendment to the National Security Act will be necessary, in order to make it legally permissible for General Marshall to serve as Secretary of Defense—but I believe that Congress will speedily amend the law in General Marshall's case, if you should so recommend.

Johnson's letter references Section 202 of the National Security Act of 1947 (P.L. 80-253), which specified that the Secretary of Defense was to be "appointed from civilian life by the President, by and with the advice and consent of the Senate," and provided that "a person who has within ten years been on active duty as a commissioned officer in a Regular component of the armed services shall not be eligible for appointment as Secretary of Defense."

George Catlett Marshall, General of the Army

General Marshall was

born in Uniontown, Pennsylvania, on 31 December 1880. He entered the Virginia Military Institute in 1897, graduated in 1901, and took a commission as second lieutenant in the United States Army in 1902.... Marshall had extensive combat experience in Europe during World War I, and between 1919 and 1924 he was aide-de-camp to General John J. Pershing. After three years in China (1924–27), he served for the next dozen years at posts in the United States.... He became a brigadier general in 1936. In 1939 just as World War II began in Europe, President Roosevelt appointed Marshall Army Chief of Staff. In that position and as a member of the Joint Chiefs of Staff beginning in 1942, Marshall labored unceasingly to build up U.S. defenses.... President Truman later described him as the 'architect of victory' in World War II.

…in November 1945 Truman sent him to China [as the Special Representative of the President to China] in an unsuccessful attempt to mediate the civil war between the Nationalists and Communists and to establish a coalition government. He returned to the United States in January 1947 to become secretary of state [during two years] marked by the Truman Doctrine, the Marshall Plan, the Inter-American Treaty of Reciprocal Assistance, and negotiation of the NATO pact. After he left the State Department he achieved further distinction as president of the American Red Cross.

General Marshall's Status as a Five-Star General of the Army

General Marshall was also one of four World War II-era Army generals first temporarily designated as a five-star General of the Army in 1944.

First authorized on December 14, 1944, as a temporary wartime grade by P.L. 78-482, the grade of General of the Army was made permanent on March 23, 1946, by P.L. 79-333. As established by P.L. 79-333, upon retirement General Marshall was entitled to continue to receive the same pay and allowances he had received while on active duty as General of the Army:

The officers appointed under the provisions of this section ... shall receive the pay and allowances prescribed by section 4 of [P.L. 78-482].... Any officer on the active list, or any retired officer, who is appointed under the provisions of this section and who has been or may hereafter be retired or relieved from active duty, shall be entitled to have his name placed on the retired list with the highest grade or rank held by him on the active list or while on active duty, and shall be entitled to receive the same pay and allowances while on the retired list as officers appointed under this section are entitled to receive while on active duty.

General Marshall retired in the grade of General of the Army on February 28, 1947, but was returned by his request to "the active [duty] list of the Regular Army on March 1, 1949" through P.L. 80-804, which provided that the

laws requiring retirement of Regular Army and Regular Air Force officer because of age shall not apply to officers of the Regular Army or Regular Air Force appointed in the grade of General of the Army pursuant to the Act of March 23, 1946 … the President may, in his discretion, upon the request of the officer concerned, restore to the active list of the Regular Army or Regular Air Force any officer of the Regular Army or Regular Air Force on the retired list who was appointed in the grade of General of the Army pursuant to the Act of March 23, 1946.

For administrative purposes following his restoration to the Army active duty list, General Marshall was assigned to the Office of the Chief of Staff of the Army. In this role, General Marshall had no official position in the Army command structure, and had minimal official military duties and responsibilities.

Legislative Consideration of P.L. 81-788

Tuesday, September 12, 1950

Presidential Activities

After President Truman accepted Johnson's resignation, contemporary press accounts report that the President telephoned General Marshall late in the afternoon on September 12, 1950, and formally asked him to serve as Secretary of Defense. General Marshall is reported to have immediately accepted the President's call to service.

Johnson's letter of resignation, together with an acceptance letter from President Truman, was made public that evening.

Wednesday, September 13, 1950

Presidential Activities

On September 13, 1950, as press reports regarding Johnson's resignation and the President's selection of General Marshall to serve as Secretary of Defense circulated, President Truman forwarded a legislative proposal to Representative Carl Vinson (Georgia-6 th District), then Chairman of the House Armed Services Committee, and Senator Millard Tydings (Maryland), then Chairman of the Senate Armed Services Committee. In a cover letter accompanying the proposal, the President addressed the committee heads:

Attached is a draft of legislation which would permit General George C. Marshall to serve as Secretary of Defense. I request that you lay this matter before your committee with a view of obtaining early and favorable action by the Congress. I am a firm believer in the general principle that our national defense establishment should be headed by a civilian. However, in view of the present critical circumstances and General Marshall's unusual qualifications, I believe that the national interest will be served best by making an exception in this case.

The text of President Truman's draft legislation was not preserved in electronically available House or Senate committee documents.

House Activities

Meeting of the House Armed Services Committee

While Senate Armed Services Committee documents and the Congressional Record make reference to a meeting of the House Armed Services Committee during the morning of September 13, 1950—presumably to review and discuss the President's legislative proposal—this meeting appears to have taken place as an executive session, with no record of the committee's discussions or debate preserved through electronically available committee documents.

In floor remarks on September 15, 1950, Representative Paul J. Kilday (Texas-20 th District), seeking to correct the "impression that ... [Representative Vinson] had attempted to rush this matter through the committee without an opportunity for everyone to be heard," noted that "[on the 13 th ] this matter was brought up and thoroughly discussed. Not only was each Member given an opportunity to speak upon it, but [Representative Vinson] called upon each member of the committee individually to state his views."

Floor Activity and Introduction of H.R. 9646

During the September 13, 1950, House session, Representative John McSweeney (Ohio-16 th District) made floor remarks generally supporting General Marshall's reported nomination, while Representative John E. Rankin (Mississippi-1 st District) made floor remarks criticizing General Marshall's record of service during World War II and as Secretary of State. Representative Rankin characterized General Marshall's appointment as Secretary of Defense as a "serious mistake," and called for the nomination to be withdrawn.

Representative Vinson also introduced H.R. 9646 ("A bill to authorize the President to appoint General of the Army George C. Marshall to the office of Secretary of Defense"), which was referred to the House Armed Services Committee.

Legislative Provisions of H.R. 9646

As introduced, H.R. 9646 waived certain requirements associated with two statutory provisions specifically and only for General Marshall's nomination to the office of Secretary of Defense.

These requirements would have automatically made General Marshall ineligible for the position due to an insufficient period of time elapsing between his military service and appointment as Secretary of Defense (Section 202 of the National Security Act of 1947, which stipulated that a person who had, within 10 years, served on active duty as a commissioned officer in the regular armed services was ineligible for appointment as Secretary of Defense). Other statutory requirements would have forced him to relinquish his commission as an active duty Army officer in order to serve as Secretary of Defense (10 U.S.C. §576, which then barred officers on the active list of the Army from holding civil office, either by election or by appointment, and stipulated that officers who accepted or exercised the functions of a civil office vacated their commissions, thereby ceasing to be an officer of the Army).

H.R. 9646 further provided that, so long as he held the office of Secretary of Defense, General Marshall would retain his rank and grade as a General of the Army, would continue to receive the pay and allowances to which he was entitled by virtue of such rank and grade, and would be authorized to receive any difference between such pay and allowances and the salary prescribed by law for the office of the Secretary of Defense.

H.R. 9646 also specified that General Marshall would be subject to "no supervision, control, restriction, or prohibition (military or otherwise) other than would be operative with respect to him if he were not an officer of the Army" in the performance of his duties as Secretary of Defense.

Senate Activities

Meeting of the Senate Armed Services Committee

At 11:30 a.m. on September 13, 1950, the Senate Armed Services Committee convened for a brief public meeting. After the meeting, Senator Tydings read out President Truman's letter to the committee "so that the press will have the information that has been sent up" by the President. Following a short question and answer period with members of the press in attendance, the Senate Armed Services Committee recessed and immediately reconvened in a closed executive session.

Although the committee was in executive session, the Senate Armed Services Committee preserved a transcript of session discussion and debate in committee documents. Senator Tydings opened the executive session by noting that upon hearing the news of General Marshall's potential nomination, he had requested the "Legislative Counsel to draw different bills touching the matter different ways." As General Marshall was still considered to be on active duty status, Senator Tydings noted that a legislative approach was quickly discarded that would have modified the existing law to "[make] it so that if a man was out of the service on the retired list for three or four years" he could be nominated to the office of Secretary of Defense.

Senator Tydings then presented two potential legislative options to the committee:

modifying the existing statute to insert the phrase "except in time of war"; or passing legislation making an exception to the relevant statutes for General Marshall "alone, so that the law will remain intact and nobody else can get in, even in time of war, unless we pass a special act."

The first proposal received little attention during the recorded committee discussion.

Committee attention chiefly focused on the second proposal, with many Senators, including Senator Tydings, contending that the present "time of great crisis" justified making a specific, personal exception to the relevant statutes for General Marshall, who was viewed as having a record of service and leadership that made him uniquely and exceptionally qualified to take up the duties and responsibilities of the office of Secretary of Defense. General Marshall was further seen as having "the confidence of the people" to lead the Department of Defense during wartime, with one Member asserting that his appointment would "spread confidence throughout our [allies and would] cause our enemies to be a great deal more cautious before they make any overt movements right at this time." Other Senators looked beyond General Marshall's qualifications to support the procedural approach taken by the second proposal—one Member stated that providing a specific exception for General Marshall alone "indirectly serves notice to the people that this bill is designed for only one man, for only one appointment, and to meet an emergency."

However, others objected, with Senator William F. Knowland (California) pointing to the "fundamental question" of civilian control of the military establishment raised by General Marshall's proposed nomination, especially in light of his status as an active duty military officer. On a procedural level, Senator Knowland objected to Truman "asking, upon twenty-four hours' notice, without prior consultation with this Committee or with the Congress, a change in the fundamental law of the land," and further charged that the committee was being

rushed off its feet, without a chance to explore all of the implications of this suggested change ... in less than one day's notice we are being asked to waive [the relevant section of the National Security Act of 1947], and I believe, regardless of the fact that you write this in for one man, it is the old story of the camel getting his head in under the tent. Once having waived the law, it is going to be far easier for the President or any President to ask for its waiver a second time.... I think it is a very serious step we are being asked to take. The committee may in its judgement—and apparently is prepared to go ahead and approve this and send it to the floor. But I want to emphasize that I think we are taking an unprecedented step and one that may rise to plague this nation in the years ahead, when it may not be George Marshall who is being suggested for the position.

Senator Knowland, while acknowledging General Marshall's qualifications, contended that equally well qualified candidates could be identified whose service as the Secretary of Defense would not require the suspension or alteration of existing United States law. Senator Harry P. Cain (Washington), in voicing his support for Senator Knowland's views, further objected to the "pre-merchandising" of the appointment by Truman to the public, describing Truman's actions as placing the committee in an "impossible situation."

By a vote of 10 to 2, with one member not voting, the Senate Armed Services Committee voted to proceed in reporting the committee's original bill to the Senate. Although Senator Tydings pressed for unanimous support of the bill, both Senator Knowland and Senator Cain refused to vote in support of the measure. Procedural and administrative remarks made by Senator Tydings during the session also call attention to his view that the committee and the Senate should expedite passage of the measure, with an eye to confirming General Marshall's appointment in the Senate before the September 23 congressional recess for the 1950 elections.

Floor Activity and Reporting of S. 4147

The bill was reported as S. 4147 during the afternoon Senate session, accompanied by a committee report including the minority views of Senator Knowland and Senator Cain.

Legislative Provisions of S. 4147

Using legislative text identical to H.R. 9646, S. 4147 waived certain statutory requirements specifically and only for General Marshall's nomination to the office of Secretary of Defense.

Thursday, September 14, 1950

House Activities

Committee Activity

During the morning of September 14, 1950, the House Armed Services Committee conducted a full committee hearing on two pending pieces of legislation—S. 4135, which would have authorized the President to appoint General Omar N. Bradley as a General of the Army, and S. 4136, which would have included the Coast Guard within the provisions of the Selective Service Act of 1948, and would have further authorized the President to extend enlistments in the Coast Guard.

In concluding the hearing, Representative Vinson noted that the Committee's consideration of the two bills "[disposed] of everything that I know of that is on our calendar up to this hour, except the bill that we will vote on tomorrow, the bill in regard to General Marshall."

Floor Activity

During the afternoon House session, Representative Clare E. Hoffman (Michigan-4 th District) made floor remarks characterizing General Marshall's nomination to serve in the office of Secretary of Defense as a "tragic mistake." Representative Hoffman's remarks outlined his stance against General Marshall's appointment, questioning General Marshall's World War II service record, his physical capability to assume the duties and responsibilities of the office of Secretary of Defense, and his view of General Marshall as "[favoring] the Communist policy of the conquest of China" through his actions as Special Representative of the President to China in 1945 and 1946.

Also during the afternoon House session, Representative Jacob K. Javits (New York-21 st District) briefly mentioned General Marshall's nomination in the context of extended remarks on the Korean War. While Representative Javits expressed his view that General Marshall would do an "effective job" if confirmed, he noted the "troublesome problems involving the continued civilian control of the military" invoked by General Marshall's nomination.

Senate Activities

Floor Activity

Although the Senate briefly considered S. 4147 during its September 14, 1950, session, Senator Walter F. George (Georgia) requested that action on a motion to reconsider a vote by which the Senate voted to disagree to a House amendment to Senate amendment 191 to the Revenue Act of 1950 (H.R. 8920) be given precedence in order to expedite the work of a conference committee for the measure. Senator Harry F. Byrd (Virginia), who was serving as floor manager for S. 4147 in Senator Tydings' absence, agreed—provided that S. 4147 would be the next order of business following Senate action on the motion to reconsider.

However, due in part to the Senate's consideration of the motion to reconsider consuming more time than had been anticipated, the Senate ultimately moved to stand in recess until the next day, with S. 4147 considered to be pending business for the next legislative day.

Friday, September 15, 1950

House Activities

Meeting of the House Armed Services Committee

At 10 a.m. on September 15, 1950, the House Armed Services Committee met in executive session to consider H.R. 9646. In opening the session, Representative Vinson noted that it was the "first time" he had "ever heard of the House of Representatives having an opportunity to pass upon an executive appointment ... [ordinarily] the Senate has that right, but this bill is so drafted that we, for the first time, act on the question of confirmation by repealing a law."

During the session, discussion and debate was limited to an extended statement from Representative Dewey Short (Missouri-7 th District) objecting to the pending legislation. Among other objections, Representative Short questioned General Marshall's physical capability to serve as Secretary of Defense, and advocated for the principle of civilian control of the military establishment. Following Representative Short's remarks, the House Armed Services Committee voted 18 to 7 to proceed in reporting H.R. 9646 to the House.

Floor Debate

Representative Vinson reported H.R. 9646, together with a committee report, back to the House during the afternoon House session.

After the conclusion of routine House business, H.R. 9646 was brought to the floor after a two-thirds vote in favor of adopting standard procedural considerations outlined by H.Res. 853.

The ensuing floor debate was contentious and at various times strongly supportive or sharply critical of General Marshall. Opposition to the bill in light of General Marshall's personal qualifications focused on questioning General Marshall's physical capability to assume the duties and responsibilities of the office of Secretary of Defense; challenging General Marshall's record of service as Special Representative of the President to China and as Secretary of State; and allegations that General Marshall would be unable to set aside any prior "special attachments" to the U.S. military establishment and effectively lead the combined military and civilian elements of the Department of Defense.

Most representatives voicing opposition for the bill strongly advocated for holding the principle of civilian control of the military establishment above the personal qualifications of General Marshall, with some charging that the bill represented a "[weakening] of the Constitution" and a "first step toward a military state." Some further contended that Marshall was not the "indispensable" man to serve in the office of Secretary of Defense at that time, as equally well qualified candidates could be identified whose service as the Secretary of Defense would not require the suspension or alteration of existing United States law.

Supporters of the bill, such as Representative Vinson, argued that in light of the "[critical] present international situation," and the need for "[restoration of] confidence in our military leadership," General Marshall's record of service and leadership would allow him to

undertake this vast responsibility and, without the slightest postponement of urgently needed defense programs now under way, get the defense effort on a steady keel and carry it through with efficiency and dispatch.... The Nation cannot afford to take out time to educate a new Secretary of Defense. At least a year would pass before a new person could be truly effective. The Nation cannot now afford to indulge itself in a year of indecision and delay.

Representative Vinson also addressed the issue of civilian control of the Department of Defense:

With General Marshall as Secretary of Defense there can be no sensible case made that he, as a military man is likely to perform dangerously as regards our national institutions. Not only does his own background and personal convictions and public record shout the denial to that, but just what is the practical situation in the Government? We still have the President, a civilian.... We still have the National Security Council which formulates the Nation's military and foreign policies, headed by the President and composed of civilians outnumbering the Secretary of Defense. And of course we still have…the Senate and the House of Representatives, and the Supreme Court as well, all of which exercise civilian control over the Armed Forces and over the Secretary of Defense. So, while I subscribe to the principle set out in the Unification Act, the fact remains that this temporary suspension of the law cannot and assuredly will not have any hurtful impact on our governmental processes ... the question before the committee remains ... whether or not the pressure of time is such that the Nation should resort to a draft of General Marshall.

Amendments Proposed

Two procedural motions that would have returned H.R. 9646 to committee were introduced and defeated, while four amendments to H.R. 9646 were offered during floor debate.

Representative James G. Fulton (Pennsylvania-31 st District) offered an amendment that would have authorized the appointment of Representative Vinson to the office of Secretary of Defense instead of General Marshall—Representative Vinson then made a point of order that the amendment was not germane to the bill. The House Chair sustained the point of order, and the amendment was dismissed.

Representative Vinson offered an amendment that would insert a new section to the bill expressing the intent and sense of the Congress in granting the President the authority to appoint General Marshall as Secretary of Defense:

It is hereby expressed as the intent of the Congress that the authority granted by this Act is not to be construed as approval by the Congress of continuing appointments of military men to the office of Secretary of Defense in the future. It is hereby expressed as the sense of the Congress that after General Marshall leaves the office of Secretary of Defense, no additional appointments of military men to that office shall be approved.

In offering the amendment, Representative Vinson stated that he wished it to be

distinctly understood that this bill shall not be a continuing precedent for the appointment of military men. We want to adhere to the viewpoint expressed in the President's letter, civilian control. For that reason I want the sense of the Congress affirmatively expressed not only in the committee report but also in the very heart of the bill.

Representative Javits then offered a substitute amendment to Representative Vinson's amendment that would state that

[i]t is the intent of Congress that the authority granted to the President by this act shall not constitute a precedent or reversal of the policy of our Government that there shall be civilian control of the National Military Establishment.

Representative Javits's substitute amendment was rejected by voice vote; Representative Vinson's amendment was agreed to by voice vote.

Representative Short offered an amendment that would have inserted a sunset clause into the legislation: "This bill shall terminate 1 year after its enactment."

Representative Short's amendment was defeated by a vote of 136 to 61.

Vote and Passage

By a vote of 220-105, with 101 representatives not voting and three representatives answering "present" to the roll call, H.R. 9646 passed the House and was sent to the Senate.

Senate Activities

Floor Debate

On September 15, 1950, the Senate resumed consideration of S. 4147. Senator Byrd, continuing to act as floor manager for the bill in Senator Tydings's absence, offered an extended explanation of the bill, which summarized the Senate Armed Services Committee's consideration of the legislation, and advocated for the passage of the measure in light of the "crisis" of the Korean War and General Marshall's "supreme qualifications" to take up the duties and responsibilities of the office of Secretary of Defense.

As in the House, the ensuing floor debate was contentious, extensive, and at various times strongly supportive or sharply critical of General Marshall. Debate brought up many of the same issues raised in committee meetings, and chiefly focused on the question of holding the principle of civilian control of the military establishment above the personal qualifications of General Marshall.

Substitution of House Bill

As the Senate debate continued, a message from the House Clerk to the Senate announced that the House had passed H.R. 9646. By unanimous consent, the Senate accordingly substituted H.R. 9646 for S. 4147, and resumed its consideration of the measure.

Vote and Passage

By a vote of 47-21, with 28 Senators not voting, H.R. 9646 passed the Senate.

Enactment of H.R. 9646 and Confirmation of General Marshall

H.R. 9646 was signed into law by President Truman on September 18, 1950, as P.L. 81-788.

Following a confirmation hearing held on September 19, 1950, the Senate voted to confirm General Marshall's nomination to the office of Secretary of Defense on September 20, 1950, by a vote of 57-11, with 28 Senators not voting.

General Marshall took office as the third Secretary of Defense on September 21, 1950, and would serve in that role until September 12, 1951.