The current secretary of defense, Lloyd Austin, was a notable nominee not only as the first black person to hold the position but because of his prior military experience. Like his recent predecessor, Secretary James Mattis, Secretary Austin’s confirmation required not only U.S. Senate confirmation but the passage of a waiver of Sec. 113 of Title 10, U.S. Code. It states that “[a] person may not be appointed as Secretary of Defense within seven years after relief from active duty as a commissioned officer of a regular component of an armed force.”[1]

The restriction against recent active duty service for civilian secretaries of defense has been in place since the 1947 National Security Act created the position. It has been waived three times. In 1950, Congress waived the restriction to pave the way for the confirmation of George C. Marshall, who had retired from the Army five years before.[2] Congress also waived the restrictions for Secretaries Austin and Mattis.

Initially, the prohibition was longer than it is today – ten years.[3] It was a compromise between the U.S. House of Representatives (whose version of the bill precluded the secretary from having any prior active-duty service) and the Senate.(4) In 2008, Congress shortened the restriction to seven years and extended it to the deputy secretary of defense and under secretary of defense for policy.[5]

The most frequently cited justification for this restriction is consistent with the deeply held American principle of civilian control over the military.[6] Legal scholar Lieutenant Colonel (LTC) Dan Maurer offers a more detailed breakdown of the many variations on this theme, identifying nine basic forms for this argument.[7] Maurer cites objections that range from the argument that presidents gain (unwarranted) political or policy credibility based on high public regard for the military and to the view that a career in uniform, and the perspective that evolves as a result of that experience, cannot be overcome or expanded without significant time in post-retirement civilian life (if ever at all). Maurer argues, however, that the restrictions in current law are best viewed as an opportunity for Congress to engage in a deep and thorough assessment of the appropriate civil-military relationship in the context of the individual nominee, rather than as an inviolate prohibition against recently retired officers.