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Should retired general Mattis get a waiver so he can serve as secretary of defense?

Should retired general Mattis get a waiver so he can serve as secretary of defense?

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Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

matchlight said:
It's irrelevant whether this law makes sense to you. It is plainly unconstitutional, and therefore it may be ignored. The Constitution gives the President power to appoint officers of the United States whose appointments are not otherwise provided for in the Constitution. Congress has no authority to condition that power with laws.
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I've been wondering about that. The Appointment's Clause give Congress the power to consent to Presidential appointments. The law here in question could be viewed as Congress conditioning upfront appointments it would consent to. Though that's probably a stretch since it binds future Congresses.
 
Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

Ikari said:
Have other people been given waivers? What is the purpose for having that period of inactivity? If no one else has been given waivers, if there's a for real reason why one needs to wait between end of service and political career, then no he shouldn't be given the waiver.
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George Marshall in 1950 was granted a waiver. His is the only case where a waiver was needed that I could find.

The idea is to make sure a former officer is sufficiently "civilianized" since the head of the DoD is a civilian position.
 
Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

upsideguy said:
The 7 year rule may make no sense to you, but that does not mean it does not make sense.

The proposition before us is "should he get the waiver?", not "will he get the waiver?" A time when someone appears to be on a fast track to have the law waived for his benefit is EXACTLY the time to be arguing and thus is far from pointless. This is the exact time to ask why the law exists and what is so compelling about this particular candidate that we NEED to look the other way on established law.
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If he gets his nomination approved then yes he should get the waiver in the same way if you get approved for a loan, you should actually get the loan.
 
Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

backpacker said:
If he gets his nomination approved then yes he should get the waiver in the same way if you get approved for a loan, you should actually get the loan.
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OK, fun with metaphors...

Suppose you are sufficiently credit worthy to carry the loan, but are not a US citizen and have no US address... do you waive the bank's policy that you must be a citizen?

OK, back to seriousness. The rule exists for a reason. You don't just waive it for the halibut.

People are dismissing the reason that we have this rule, probably because they lack a fundamental understanding of American history, civics and our Constitution. Most of the posts here even admit that have no clue as to why the rule exists in the first place. It seems that tenor is this is some type of arcane or otherwise unnecessary restriction.
 
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Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

Gaius46 said:
I've been wondering about that. The Appointment's Clause give Congress the power to consent to Presidential appointments. The law here in question could be viewed as Congress conditioning upfront appointments it would consent to. Though that's probably a stretch since it binds future Congresses.
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You hit on the answer. The Appointments Clause uses the phrase "by and with the advice and consent of the Senate" twice. It uses it first as a condition on the President's power to make treaties. It then uses the phrase again as a condition on his power to make appointments of both several specified types of officers of the United States, and of all other such officers whose appointments are otherwise not provided for in the Constitution.

The men who wrote the Constitution knew how to use English precisely. They carefully designed Article II, section 2, clause 2 to give one house of Congress, the Senate, a limited say in the President's making of treaties and his appointment of principal federal officers. Why specify the Senate, which by itself cannot make any laws, if they meant that clause to authorize laws flatly prohibiting the President from making certain treaties or appointments?

If the Framers had meant to grant Congress as a whole power to prohibit the President from appointing certain persons to his Cabinet, whether because of their military service or some other reason, they could easily have included that among the limited powers of Congress they enumerated in Article I, section 8. But they did not do that, and Congress has no such power.
 
Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

matchlight said:
You hit on the answer. The Appointments Clause uses the phrase "by and with the advice and consent of the Senate" twice. It uses it first as a condition on the President's power to make treaties. It then uses the phrase again as a condition on his power to make appointments of both several specified types of officers of the United States, and of all other such officers whose appointments are otherwise not provided for in the Constitution.

The men who wrote the Constitution knew how to use English precisely. They carefully designed Article II, section 2, clause 2 to give one house of Congress, the Senate, a limited say in the President's making of treaties and his appointment of principal federal officers. Why specify the Senate, which by itself cannot make any laws, if they meant that clause to authorize laws flatly prohibiting the President from making certain treaties or appointments?

If the Framers had meant to grant Congress as a whole power to prohibit the President from appointing certain persons to his Cabinet, whether because of their military service or some other reason, they could easily have included that among the limited powers of Congress they enumerated in Article I, section 8. But they did not do that, and Congress has no such power.
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But we accept as routine the fact that Congress delegates its' lawmaking powers to various executive agencies in the interest of efficiency. Isn't this an analogous situation? The Senate clearly didn't see it as a case of the House usurping their prerogatives or they wouldn't have passed the legislation in the first place. Likewise the Senate isn't taking on any extra-Constitutional authority. It's merely stated up front that it would never consent to certain nominees which seems reasonable to me.
 
Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

Gaius46 said:
But we accept as routine the fact that Congress delegates its' lawmaking powers to various executive agencies in the interest of efficiency. Isn't this an analogous situation?
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I like the unlawful delegation doctrine, which the Court abruptly abandoned after using it in three cases in 1935, and I would like to see it revived and used to rein in administrative agencies. But if there is an unlawful delegation issue here, I don't see it.

The Senate clearly didn't see it as a case of the House usurping their prerogatives or they wouldn't have passed the legislation in the first place.
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I don't know what the Senate saw, but that law is plainly unconstitutional.

Likewise the Senate isn't taking on any extra-Constitutional authority. It's merely stated up front that it would never consent to certain nominees which seems reasonable to me.
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Any Senator or group of Senators is free to express that view. The fact the Constitution conditions the appointment of persons the President nominates as principal federal officers on the Senate's consent means nothing, if not that the Senate has power to withhold that consent in regard to a particular nominee. But for Congress to make a law that prohibits a President from appointing a member of a specified class of persons to his cabinet goes much further, into an area where Congress has no authority. There is a clear difference between a limited power over a procedure the Constitution grants to one house of Congress, on the one hand, and on the other, a power the Constitution does not grant for both houses of Congress to make laws regulating that procedure.
 
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Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

If Mattis is the man he looks to be on paper, I would hope he would abide by the law, request a waiver, and be granted one. He's by far my favorite of Trump's picks. I see nothing controversial about the pick or the process of getting a waiver. 3 years, 7 years? A good man is a good man.
 
Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

Porkuloss said:
If Mattis is the man he looks to be on paper, I would hope he would abide by the law, request a waiver, and be granted one. He's by far my favorite of Trump's picks. I see nothing controversial about the pick or the process of getting a waiver. 3 years, 7 years? A good man is a good man.
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I hope Mr. Trump will simply ignore this plainly unconstitutional law and defy Congress to try to use it. The separation of powers is a structural feature which was designed into the Constitution for very important reasons, and no President should allow Congress to intrude on his constitutional powers.
 
Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

upsideguy said:
OK, fun with metaphors...

Suppose you are sufficiently credit worthy to carry the loan, but are not a US citizen and have no US address... do you waive the bank's policy that you must be a citizen?

OK, back to seriousness. The rule exists for a reason. You don't just waive it for the halibut.

People are dismissing the reason that we have this rule, probably because they lack a fundamental understanding of American history, civics and our Constitution. Most of the posts here even admit that have no clue as to why the rule exists in the first place. It seems that tenor is this is some type of arcane or otherwise unnecessary restriction.
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Congress wouldn't even seriously consider the nomination if they were not prepared to waive the 7 year rule.
 
Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

matchlight said:
I like the unlawful delegation doctrine, which the Court abruptly abandoned after using it in three cases in 1935, and I would like to see it revived and used to rein in administrative agencies. But if there is an unlawful delegation issue here, I don't see it.



I don't know what the Senate saw, but that law is plainly unconstitutional.



Any Senator or group of Senators is free to express that view. The fact the Constitution conditions the appointment of persons the President nominates as principal federal officers on the Senate's consent means nothing, if not that the Senate has power to withhold that consent in regard to a particular nominee. But for Congress to make a law that prohibits a President from appointing a member of a specified class of persons to his cabinet goes much further, into an area where Congress has no authority. There is a clear difference between a limited power over a procedure the Constitution grants to one house of Congress, on the one hand, and on the other, a power the Constitution does not grant for both houses of Congress to make laws regulating that procedure.
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You've made some good points. The president used to be able to bypass the senate by making appointments during 'recess'...IE: John Bolton as UN Ambassador. But congress got wise to that. But I think your right....congress can't pass laws to curb the authority of another branch....except maybe through a budget bill....or with explicit wording in the law itself as to how it is to be implemented, enforced or regulated.
 
Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

matchlight said:
I hope Mr. Trump will simply ignore this plainly unconstitutional law and defy Congress to try to use it. The separation of powers is a structural feature which was designed into the Constitution for very important reasons, and no President should allow Congress to intrude on his constitutional powers.
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That confirmation is subject to Congressional review, no matter what Trump thinks or "ignores". Again, I support the nomination. If congress or the courts want to overturn that law, let them do it properly. It was already revised from 10 years to seven about a decade ago.
 
Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

Obama ran around congress how many times?


Now the liberals want to talk about etiquette?


Screw em!
 
Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

Can he speak Russian?
 
Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

If the law is bad we should just get rid of it
 
Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

jamesrage said:
Should retired general Mattis get a waiver so he can serve as secretary of defense?

Yes
No



I say yes.
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Honestly, of all the cabinet picks, Mattis seems like the best one.

Having someone who is actually a civilian there is pretty important. I guess, at this point, i no longer care to contest this, because it is the least of my concerns about the underpinnings of this next administration.
 
Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

Absentglare said:
Honestly, of all the cabinet picks, Mattis seems like the best one.

Having someone who is actually a civilian there is pretty important. I guess, at this point, i no longer care to contest this, because it is the least of my concerns about the underpinnings of this next administration.
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He is no longer in the military so he is a civilian.
 
Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

Deuce said:
If the law is bad we should just get rid of it
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Hopefully you are making that statement with a full understanding of why the law exists.... If not, please study up.
 
Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

upsideguy said:
Hopefully you are making that statement with a full understanding of why the law exists.... If not, please study up.
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Oh, so we should keep it then.

Maybe follow it too.
 
Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

jamesrage said:
Should retired general Mattis get a waiver so he can serve as secretary of defense?

Yes
No



I say yes.
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When it comes to presidential appointments, I have always believed a president, any president should have whom he wants. It the appointment is a dud, a bust, the president is responsible.
 
Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

jamesrage said:
He is no longer in the military so he is a civilian.
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That would be the issue, whether he qualifies as a civilian or not.

I'm thinking he's at least kinda NOT civilian, at the same time. Enough to disqualify him?

Not really. President-Elect Trump could turn around and appoint a civilian who is far worse than Mattis.
 
Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

Porkuloss said:
That confirmation is subject to Congressional review, no matter what Trump thinks or "ignores". Again, I support the nomination. If congress or the courts want to overturn that law, let them do it properly. It was already revised from 10 years to seven about a decade ago.
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The President appoints the members of his cabinet "by and with the advice and consent of the Senate." The House takes no part in this process.

It is completely proper of any President to decline to observe any federal law he believes in good faith to be plainly unconstitutional. He does not need to--nor should he--ask permission from any court, or from Congress. I don't give a damn how this law was revised. It is a plainly unconstitutional attempt by Congress to infringe on a power the Constitution grants the President, and it deserves no one's respect.
 
Re: Should retired general Mattis get a waiver so he can serve as secretary of defens

jamesrage said:
Should retired general Mattis get a waiver so he can serve as secretary of defense?

Yes
No

I say yes.
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I say 'no'.

I am not convinced of the need for the rule, but it is the rule (and any self-claiming law-abiding citizen should agree with this point). Waivers are for extenuating circumstances. Are there no others that can do the job? Is he head-and-shoulders above anyone else who might be able to do the job? I see no evidence of either, hence we should not be seeking waivers "just because". Rules and laws are not supposed to be arbitrary. It may be a dumb rule, but it's the rule. Live with it and work to change the rule.
 
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