US President Donald Trump announced Hung Cao's nomination as Secretary of the Navy on 1/9, emphasizing that "no one is better suited" to ensure the US Navy and Marine Corps remain "the strongest and most excellent" forces. The decision came five months after Hung Cao assumed the role of acting Secretary of the Navy, replacing former Secretary John Phelan, who was dismissed.

However, Hung Cao does not yet meet the qualifications for US Senate confirmation to lead the navy. US federal law requires military officers to wait at least seven years after leaving active duty before they can hold senior civilian positions at the Pentagon.

Acting US Secretary of the Navy Hung Cao in Washington D.C. on 19/5. *Reuters*

Hung Cao graduated from the US Naval Academy in 1996, serving as an explosive ordnance disposal technician and diver before retiring as a colonel in 10/2021. Under current regulations, he would have to wait until 2028 to be eligible for confirmation, unless both chambers of the US Congress pass a waiver.

Why the "cooling-off" period?

The regulation on the minimum post-retirement waiting period, also known as the "cooling-off" period, has been part of the US legal system for nearly 80 years.

The National Security Act of 1947 stipulated that a person who had held a general officer rank must wait a full 10 years after leaving active duty before assuming the position of head of the US Department of Defense.

This provision originated from concerns that influential general officers, if appointed Secretary of Defense, could threaten the principle of "civilian control of the military" in US politics, according to Washington-based Lawfare Media.

According to the US Constitution Center, the period away from military service and the waiver review mechanism aim to ensure the Secretary of Defense maintains a certain distance from the military. The objective is to prevent the Secretary from becoming too close to military officials, which could lead to conflicts of power with the US President, who serves as commander-in-chief of the armed forces, if the two sides disagree.

The "cooling-off" rule also aims to provide time for general officers and senior officers to gain a civilian perspective. It also seeks to prevent a US President from selecting a general who has just left the battlefield, who might still carry disagreements or relationships from their time in service, and immediately introduce these into the policymaking process.

"The US is one of the countries that effectively applies the principle of civilian control of the military, thanks to which coups have never occurred, nor has it faced this risk. Although there have been instances in history where US Presidents clashed with military leaders, the relationship between the two sides has remained positive and effective," the US Constitution Center analyzed.

In 1/2008, the US Congress adjusted the minimum post-retirement waiting period for appointment as Secretary of Defense from 10 years to seven years, while the "cooling-off" period for deputy positions or service secretaries was five years.

Acting Secretary Hung Cao visits the amphibious assault ship USS Makin Island on 7/8. *US Navy*

In 2021, this waiting period was increased again. A former service member who was a general officer or senior officer must wait 10 years before becoming Secretary of Defense, while someone who held the rank of colonel or lower must wait seven years.

For other Pentagon positions, such as Under Secretary of Defense and service secretaries, the waiting period also increased from five to seven years.

These restrictions do not apply to individuals who served only in the reserves or National Guard. Former Secretary of the Navy Kenneth Braithwaite, who served in the reserves as a brigadier general, did not require a waiver.

Past exceptions

The 2021 adjustment to the "cooling-off" period was passed by the US Congress after two special waivers occurred in two consecutive US presidential administrations.

In 2017, the US Senate confirmed retired general James Mattis as Secretary of Defense, nominated by President-elect Donald Trump, with a vote of 98-1. At that time, Mattis had only been out of active service for three years.

In early 2021, during President Joe Biden's term, former US Central Command (CENTCOM) leader Lloyd Austin received a special waiver for his appointment. He had retired as a general in 2016, also falling three years short of the "cooling-off" requirement.

Before these two cases, the last time the US Congress granted an exception for an early appointment was General George Marshall, former US Army commander. He retired in 1945 and was quickly appointed Secretary of Defense in 1950 to respond to the Korean War.

Special waiver requests have only occurred for the position of US Secretary of Defense. During his first term, President Trump appointed two former general officers to senior positions, John Kelly as Secretary of Homeland Security and Michael Flynn as National Security Advisor, without facing "cooling-off" period obstacles.

Brent Sadler, a senior research fellow at the Heritage Foundation, believes Hung Cao's case could easily be considered for a waiver.

"The seven-year cooling-off rule was enacted after a series of former general officers were appointed Secretary of Defense, not from concerns about a field-grade or company-grade officer like Hung Cao taking on a service secretary role," Sadler stated.

In 2021, Representative Mike Rogers argued that the seven-year rule was arbitrary, emphasizing that there was little difference between a seven-year or five-year post-retirement period.

President Trump earlier this month urged the US Senate to "confirm this warrior as soon as possible so he can continue the great work he has done for months."

However, the US Congress has limited time to process a waiver for Hung Cao. Congress has only a few working days left before the midterm elections, with the Senate scheduled to meet for three weeks and the House for one week.

If the Democratic Party gains control of the House of Representatives in the November elections, Hung Cao's path to a waiver will become more difficult due to partisan disagreements.

Representative Rogers, now chairman of the House Armed Services Committee, along with his deputy, Representative Rob Wittman, told Politico last week that a waiver for Hung Cao is feasible, but they "need to get to work on it now."

Thanh Danh (According to USNI News, Lawfare, USA Today)