One of the most important Cabinet positions Donald Trump has to fill is Secretary of Defense. Trump has finally indicated that he will nominate retired Marine Corps Gen. James Mattis, but there's a catch. He's technically not eligible for the job.
Civilian control of the military
Under title 10 of the U.S. Code, a person has to be retired from military service for at least seven years before they can become the secretary of defense.
That's because the person in charge of the Pentagon is supposed to be a civilian. Why? Well, if a professional military leader was given the ultimate responsibility for a country's strategic decision-making, that's a hop, skip, and a jump away from a military dictatorship.
A 'waiver' from Congress
Mattis has only been retired from the Marine Corps for three years. In order for him to legally become secretary of defense, Congress would have to make an exception to U.S. law, and that takes a lot more than a "waiver."
Both the House and the Senate have to either pass a statute that carves out an exemption for Gen. Mattis or they have to repeal that section of the U.S. Code.
Exemptions can be made, and it has been done before. In 1950, Congress passed a statute to exempt former Army Gen. George Marshall so he could become secretary of defense under President Truman.
But it wasn't easy, and in the end Congress attached language to the statute that said they wouldn't be handing out exemptions in the future.
They also added "no additional appointments of military men to that office shall be approved," after Marshall.
While I respect Gen Mattis’s service, I'll oppose a waiver-civilian control of our military is a fundamental principle of American democracy— Kirsten Gillibrand (@SenGillibrand) December 2, 2016
Get ready for a debate
Mattis has a lot of support from members of the military and some prominent lawmakers, including Arizona Republican Sen. John McCain, who leads the Senate Armed Services Committee.
But others, like New York Democrat Sen. Kirsten Gillibrand, say they will oppose the appointment of a military leader to the post.