President-elect Joe Biden’s decision this week to name retired Gen. Lloyd Austin III as his pick for defense secretary drew immediate concerns from lawmakers worried about another recently retired officer taking over the department’s top civilian post.

Austin, 67, served in the Army for 41 years and was head of U.S. Central Command before his retirement in 2016. If confirmed, Austin will be the first African-American to hold the Cabinet post since it was established in 1947.

However, doing so will require a waiver from Congress, since Austin’s retirement came less than seven years ago. When lawmakers created the defense secretary post 73 years ago, they included a 10-year wait (lowered to seven years in 2008) for any veteran seeking the post as a way of emphasizing civilian control of the U.S. military.

In a statement Tuesday, Biden said that he hopes lawmakers will grant the waiver.

“I respect and believe in the importance of civilian control of our military and in the importance of a strong civil-military working relationship at Department of Defense, as does Austin,” he wrote in a piece for the Atlantic. “We need empowered civilians working with military leaders to shape DoD’s policies and ensure that our defense policies are accountable to the American people.

“Austin also knows that the secretary of defense has a different set of responsibilities than a general officer and that the civil-military dynamic has been under great stress these past four years. He will work tirelessly to get it back on track.”

Lawmakers have only made an exception to the rule twice: in 1950, when George Marshall was nominated by then President Harry Truman; and in 2017, when Jim Mattis was nominated by then President-elect Donald Trump.

In the latter case, 16 Senate Democrats voted against the waiver, saying that they had concerns about the precedent set by Mattis’ nomination.

Senate Armed Services Committee ranking member Jack Reed, D-R.I., supported the move but announced in a hearing that “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.”

If Biden nominates Austin, the waiver issue could create a difficult decision for those same members.

On Capitol Hill on Tuesday, Reed told reporters that he would “have to measure [Austin’s] aptitude and qualities” before making any decisions on the nomination.

“One of the reasons that we were able to reach the position on the waiver (before) is Mattis had the opportunity to testify and made some compelling arguments,” he said. “In all fairness, you have to give the opportunity to the nominee to explain himself or herself.”

Sen. Jon Tester, D-Mont. — one of those 16 who voted no in 2017 — said he was inclined to vote against a waiver for Austin.

“I thought Mattis was a great secretary. And I think this guy is gonna be a great secretary of defense,” he told reporters. “I just think that we ought to look at the rules.”

Sen. Richard Blumenthal, D-Conn., and another of the 16 no votes, praised Austin as “a trailblazer throughout his exemplary career in military service” but added that “I remain opposed to granting a waiver to anyone with significant, recent military experience serving in this post because it contravenes the constitutional principle that demands civilian control of our military.”

Although only senators will vote to confirm the next defense secretary, both chambers will have to approve a waiver. On Monday, Rep. Elissa Slotkin, D-Mich., and a key moderate voice in the party’s House caucus, tweeted that “choosing another recently retired general to serve in a role designed for a civilian just feels off.”

Several Republicans also voiced reservations about the pick.

Rep. Mike Gallagher, R-Wis., and a Marine Corps veteran, wrote on Twitter Monday night that “(the) Mattis waiver was supposed to be a one off, not the start of a trend that’s bad for civ-mil relations.” Rep. Michael Waltz, R-Fla., and an Army veteran, wrote that “former generals as SecDef should be the exception not the norm.”

But Senate Armed Services Committee Chairman Jim Inhofe, R-Okla., said he didn’t share those concerns. When asked by reporters if he would support a waiver, he replied “on him and really almost anyone else. I’ve never thought we should have to do that.”

And House Majority Whip James Clyburn, D-S.C. — whose endorsement of Biden was seen as a key factor in his primary victory — praised Austin as an important choice whose experience outweighs the other issues.

“Those [waiver] concerns are legitimate and I think we ought to look at all the requests with an eye toward why a waiver is being requested,” he told CNN on Tuesday, but added “it’s not unprecedented.”

Leo covers Congress, Veterans Affairs and the White House for Military Times. He has covered Washington, D.C. since 2004, focusing on military personnel and veterans policies. His work has earned numerous honors, including a 2009 Polk award, a 2010 National Headliner Award, the IAVA Leadership in Journalism award and the VFW News Media award.

Joe Gould is the Congress and industry reporter at Defense News, covering defense budget and policy matters on Capitol Hill as well as industry news.

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