When President Donald Trump nominated retired Marine General James Mattis as his first secretary of defense, Mattis became the first recently retired general to run the Pentagon in more than six decades.
This decision was not just one of a long list of presidential norms that Trump violated during his time in office, it also required making an exception under federal law. Shortly after World War II, Congress passed a law requiring that civilians run the military: under the terms of the National Defense Act of 1947, any former military brass must have been retired for at least seven years to qualify. Trump asked Congress to waive that law for Mattis, and Congress dutifully did as it was told.
Some Democrats rightly criticized the maneuver at the time. "Americans have always been skeptical of concentrated government power, and concentrated military power is at the top of the list," Sen. Elizabeth Warren (D–Mass.) said in a statement. "We established this rule because the principle of civilian control protects our democracy."
In a related story, President-elect Joe Biden announced Tuesday that he will nominate retired General Lloyd Austin to be his secretary of defense. Austin retired from the Army in 2016, which means that, like Mattis, he can only be appointed if Congress consents once again to this bit of presidential norm-bashing.
In an op-ed for The Atlantic, Biden outlined the case for Austin. The four-star general who oversaw the 2011 withdrawal of U.S. forces from Iraq is a man who "got the job done," Biden writes—apparently unironically. "The fact is, Austin's many strengths and his intimate knowledge of the Department of Defense and our government are uniquely matched to the challenges and crises we face. He is the person we need in this moment."
It may very well be true that in a nation of more than 330 million people, Austin is the one and only individual willing and qualified to wrangle the world's most expensive bureaucracy. It is more likely that Biden simply prefers Austin to the handful of other individuals his staff vetted for the job. A president should be free to pick his own cabinet, of course.
Still, if Biden's presidency is going to live up to its "return to normalcy" billing, he could start by, well, restoring important norms like civilian control over the military.
This is not a small thing, and shouldn't be treated as such. Rep. Justin Amash (L–Mich.), who voted against waiving the 1947 law for Mattis, wrote on Twitter that Congress is essentially being asked to "pass a special law for one person."
"This is manifestly improper," Amash wrote.
Indeed, civilian control over the military is a longstanding, fundamental element to not just American government, but democratic societies around the world. It is an arrangement meant to balance the domestic risk posed by large, powerful standing armies with the need to protect democracy from the powerful standing armies of other countries. While Congress didn't statutorily enshrine the 10-year rule until after World War II, the Congressional Research Service noted in 2017 that the idea of civilian control of the military dates back to the founding of the United States.
Unfortunately, norms that are cast aside by one president and not immediately and explicitly restored by their successor tend to just become new norms. That's a pretty good summary of the entire history of the expansion of executive power over the past century or so, but it may matter now more than during most presidential transitions because of the sheer number of tattered norms that the outgoing president leaves in his wake.
Some Democrats are already signaling their opposition to Biden's nomination of Austin. The principle of civilian control over the military "is essential to our democracy," Sen. Richard Blumenthal (D–Conn.) told The Hill on Tuesday. "That's the reason for the statute which I think has to be applied, unfortunately, in this instance." Sen. Jon Tester (D–Mont.) also indicated he would vote against waiving the law for Austin. Both had voted against waiving the retirement requirement for Mattis.
"This is becoming a trend, and I don't like it," Sen. Brian Schatz (D–Hawaii), who voted to grant that waiver for Mattis in 2017, told Politico. He acknowledged that it would be "hard to justify doing it for one distinguished retired general officer and not another."
That's the thing about norms—and laws too. Once broken, it's easy to justify breaking them again, particularly if you're doing it for your team this time, and even if you don't like it or know it might be a mistake. Before long, it's like it never mattered at all.