Yes, Steve Bannon really does need Senate approval for National Security Council appointment
When we reported on January 30th that a plain text reading of federal law says that Steve Bannon is required to go through Senate confirmation hearings in order to be appointed to a position on the National Security Council, our article received significant attention. Most agreed with out interpretation of the statute, which reads rather clearly. Some have questioned our article, based on their own assumptions and/or mistaken understandings of how NSC roles are defined. Two days later, we still stand by our original reporting.
Federal statute 50 U.S. Code 3021 makes clear that individuals are only automatically eligible for positions on the National Security Council if they fall into one of five categories, laid out in sections (a)(1) through (a)(5). By any interpretation, his past military service and current role at White House Chief Strategist notwithstanding, Steve Bannon does not fit into any of the five prescribed categories. That means section (a)(6) applies to him, which calls for the advice and consent of the Senate.
Some have argued that because Bannon is being appointed as the Executive Secretary of the Principals Committee instead of the National Security Council proper, the statute doesn’t apply. But this is faulty argument, because every reference we can find defines the Principals Committee as a subset of the National Security Council. In other words, if you’re on the Principals Committee then you’re on the National Security Council.
Others have argued that because David Axelrod sometimes sat in on President Barack Obama’s National Security Council meetings, and Axelrod didn’t have to go through Senate confirmation, it means Bannon won’t either. But while anyone can attend an NSC meeting at the President’s discretion, Axelrod was never made a part of the National Security Council and held no title related to it. David Axelrod confirmed this himself last night in a CNN op-ed where he spelled out the fundamental differences between his NSC role and Bannon’s proposed NSC role.
While Steve Bannon (or anyone else for that matter) can freely attend NSC meetings without Senate approval, Donald Trump has in fact named Bannon as a member of the NSC and created a specific role for him as Executive Secretary of the Principals Committee. And again, the Principals Committee is a subset of the NSC, meaning that anyone on the Principals Committee is automatically on the National Security Council.
The key here is that because no President has ever attempted to place a partisan civilian on the National Security Council, the statute in question has never been tested. The Senate has never had to decide whether to demand the opportunity for advice and consent, and no one has ever challenged this statute in court in order to achieve an official interpretation. As a practical matter, the most likely outcome is that for partisan reasons the Republican controlled Senate will opt not to seek confirmation hearings for Bannon. And if the Senate Democrats were to object, the Senate Majority Leader would likely go along with whatever interpretation of the statute the Trump White House offers.
Even if the Senate does intervene and demand confirmation hearings for Steve Bannon, Donald Trump could then simply decide to invite Bannon to every meeting without naming him to the Principals Committee. So in political terms, there are a number of ways for Trump and the GOP Senate to get around the statute in question. But as a matter of law, which is what we were reporting on to begin with, a plain text reading of statute 50 U.S. Code 3021 makes clear that the Senate’s approval is required for Steve Bannon to serve on the Principals Committee of the National Security Council. In other words, after two days of a complex national debate resulting from our original article, and even deeper research, nothing has changed. News outlets have an editorial responsibility to acknowledge any errors we may make, but we had this story correct to begin with.
