More Than 100 Dems Flip-Flop on Pentagon Waiver

123 Democrats voted against Mattis waiver but supported Austin

Army (retired) General Lloyd Austin
Army (retired) General Lloyd Austin / Getty Images
January 22, 2021

A total of 124 members of the Democratic caucus in Congress voted to grant a waiver allowing former Army general Lloyd Austin to serve as President Biden's defense secretary, after voting against granting the same waiver to former Secretary of Defense James Mattis when he was nominated four years ago.

A 1947 law prohibits former service members who have fewer than seven years of experience after military retirement from leading the Pentagon without a waiver. Due to Austin’s recent service in the military—the former CENTCOM commander has only been retired for five years—he required a special waiver from Congress to authorize his nomination. 

Roll call vote records in the House show 118 Democratic members voted for granting Austin the waiver after voting against granting it to Mattis when he was nominated for the same post by former President Donald Trump. In the Senate, six members of the Democratic caucus—Sens. Patrick Leahy (D., Vt.), Dick Durbin (D., Ill.), Chris Murphy (D., Conn.), Sherrod Brown (D., Ohio), and Sheldon Whitehouse (D., R.I.), and Sen. Bernie Sanders (I., Vt.)—voted for granting Austin the waiver after voting against it for Mattis.

Before Thursday’s authorization, the provision had only been granted twice: once in 1950 for war hero George C. Marshall’s nomination to lead the Department of Defense, and in 2017 for retired Marine general James Mattis. When Congress granted Mattis a waiver in 2016, Democratic members called it a "once-in-a-generation" decision.

"Waiving the law should happen no more than once in a generation," said Senate Armed Services chairman Jack Reed (D., R.I.) in 2016. "Therefore I will not support a waiver for future nominees. Nor will I support any effort to water down or repeal the statute in the future." Reed flip-flopped on that standard to advance Austin's nomination on Thursday.

Other Democrats nixed the Mattis nomination citing the importance of constitutional precedent. House Armed Services Committee chairman Adam Smith (D., Wash.) said that the Trump administration threatened civilian control of the military. "The unusual circumstances of his nomination raise serious questions about fundamental principles of our Constitutional order," Smith said of Mattis.

Despite misgivings about the constitutionality of Mattis’s nomination, Smith authorized the waiver for Austin.

Austin's nomination also saw several Republicans reverse their approach to military waivers. Nine Republicans who voted against Austin's waiver, including Sens. Tom Cotton (R., Ark.), Todd Young (R., Ind.), and Marco Rubio (R., Fla.), had approved the request for Mattis.