President-elect Joseph R. Biden Jr. is facing an arduous struggle to get his choice for secretary of defense in place by Inauguration Day, a senior national security position that all but one president in modern history has secured by Day 1.
The potential delay stems from the need of the nominee, Lloyd J. Austin III, a retired four-star Army general, to obtain a congressional exemption from a law that bars recently retired active-duty officers from serving in the top Pentagon job.
While only the Senate votes to confirm the secretary, House approval of General Austin’s waiver is also required. The House Armed Services Committee will not be holding a hearing on the matter until the day after Mr. Biden is sworn in.
Starting an administration without a secretary of defense in place is undesirable for any president, but it would be particularly fraught at a time of extraordinary turmoil in the world, and in the nation’s capital. The issue is further complicated because Mr. Biden and his aides have repeatedly complained that Trump administration officials have obstructed the transition process at the Defense Department.
The Senate could quickly confirm Kathleen Hicks, the nominee for deputy defense secretary, who could serve as acting secretary until General Austin’s nomination was resolved. Or Mr. Biden would ask the current deputy secretary, David L. Norquist, to stay on for that same period. President Trump fired Defense Secretary Mark T. Esper in November and replaced him with a team of loyalists, including an acting defense secretary who has not gone through Senate confirmation, as has Mr. Norquist.
Members of the transition team say they are focused on pushing their nominee through in a timely manner.
“President-elect Joe Biden will be sworn-in on Jan. 20 and the American people rightfully expect the Senate to confirm his crisis-tested, qualified, history-making cabinet nominees as quickly as possible,” said Ned Price, a spokesman for the transition. General Austin has been furiously making the rounds among House and Senate lawmakers in recent weeks to line up votes.
At the same time, the Biden team was slow to get the general’s financial disclosure forms to Capitol Hill for vetting, doing so only this weekend. Such delays caused the confirmations of many early Trump administration officials to linger.
Many lawmakers from both parties have balked at having another former general leading the Pentagon in a nation that has a long tradition of civilian control of the military, one that has been severely tested under the Trump presidency.
While Congress approved a similar measure four years ago for Mr. Trump’s first defense secretary, Jim Mattis, a retired four-star Marine officer, many are loath to do it again.
“Civilian control of a nonpolitical military is a foundational principle, written into our Constitution, and absolutely essential to our democracy,” said Senator Richard Blumenthal, Democrat of Connecticut, who announced on Friday that he would vote against a waiver. “If a waiver for the rule that protects this principle is approved twice in four years, in both Republican and Democratic administrations, it starts to become a norm, not an exception.”
Several civil rights groups as well as many members of the Congressional Black Caucus have argued that even those members of Congress who declined to give Mr. Mattis the nod should not block what would be the first Black defense secretary in the nation’s history, and move swiftly to approve his waiver.
“As the first Black secretary of defense, General Austin, who has broken barriers throughout his career, would lead the most diverse military in our nation’s history,” Representative Anthony G. Brown, Democrat of Maryland and the vice chairman of the House committee, said in an email.
“Our country faces immense national security challenges,” he added. “From a shocking assault on the Capitol and our democracy, an unprecedented cyberattack on government institutions and rising global threats, President-elect Biden will need a national security team in place ready to tackle these threats and renew American leadership. Secretary-designate Lloyd Austin will be instrumental to that effort. The House and Senate should move forward as quickly as possible to vet and debate a waiver for General Austin.”
The Senate has agreed to hold a hearing for the waiver this week and a confirmation hearing on Jan. 19, which would allow General Austin a path to be confirmed the next day if the House changes its plans. Unlike Mr. Mattis, who declined to attend a House hearing on his waiver, General Austin said he was committed to showing up.
Every president since Eisenhower had his defense secretary confirmed within 24 hours of when he was inaugurated (most the same day) except for the first President George Bush, whose nominee, John G. Tower, was rejected; Dick Cheney was swiftly confirmed and installed a week later. (President Barack Obama’s first defense secretary, Robert M. Gates, was held over from the George W. Bush administration.)
On Saturday, a bevy of top former national security officials from both parties released an open letter urging the Senate to quickly confirm Mr. Biden’s entire national security team, warning of the need to have a fast transition of executive power after a week of chaos in the nation’s capital.
“Historically, it has always been the case that there has been a bipartisan recognition that having a national security team in place is fundamental for every president,” said Max Stier, the chief executive of the Partnership for Public Service. “Threats can materialize and you need to make sure that the baton handoff is clean.”
In terms of a waiver, “they can and really should be doing that as fast as possible,” he added. “The Biden team has not gotten all the information they need to understand the state of play there.”