Two Republican lawmakers say they will oppose a waiver they contend must be approved by both chambers of Congress before President Joe Biden’s nominee to lead the Federal Aviation Administration can be confirmed by the Senate.

In a letter to Biden on Thursday, Senate Commerce, Science and Transportation ranking member Ted Cruz, R-Texas, and House Transportation and Infrastructure Chairman Sam Graves, R-Mo., say a waiver is needed because FAA nominees may not be in the military or retired from the military.

Democrats supporting the nominee say no such waiver is needed.

Biden’s nominee, Phil Washington, is currently the CEO of Denver International Airport, a position he’s held since June 2021, and has worked for decades leading metropolitan transit systems. He’s also a 24-year veteran of the U.S. Army, where he held the rank of command sergeant major — the second highest noncommissioned officer rank an enlisted soldier can achieve. 

Unlike the rules for the Defense secretary, which allow a nominee to be considered a civilian if they have at least a seven-year “cooling-off period,” the FAA statute does not allow for any retired military member, regardless of time, to be eligible.

Defense Secretary Lloyd J. Austin III was confirmed in 2021 after the House and Senate approved a waiver for that department’s seven-year cooling-off period. A former four-star general who led the U.S. Central Command, Austin retired from service in 2016.  President Donald Trump’s Defense secretary, retired Marine Gen. Jim Mattis, also required a waiver from the House and Senate.

Cruz and Graves said they intend to oppose such a waiver, arguing that Washington’s qualifications and experience do not “outweigh the concerns of undermining the law.”

“While airports are undoubtedly part of the aviation field, the contention that less than two years as an airport CEO is ‘experience in a field directly related to aviation’ for the purpose of becoming the FAA Administrator is dubious at best,” they wrote. “It is not just that Mr. Washington lacks sufficient aviation experience, but critically he lacks experience in matters of aviation safety.”

Cruz and other Republicans described their opposition to Washington in a Senate Commerce hearing Wednesday, highlighting that in the midst of flight hiccups like the FAA system failure in January, the so-called Southwest meltdown in December and a number of near collisions over the last few months, FAA needs a more experienced leader. 

“The agency’s primary [safety] obligation is so important that Congress mandated that the FAA administrator must have ‘experience in a field directly related to aviation,’” Cruz said at the hearing. “I’m disappointed that the administration has chosen to treat a critical safety position … as a patronage job as a result of the White House playing politics with the flying public safety.”

Cruz also alleged that Washington “wasted taxpayer money” during his time leading various transit agencies, saying “government waste and delayed, over-budget projects are things we want to change at the FAA.”

Democrats continue to support Washington’s nomination, touting his background in public transportation leadership as many in Congress push for overhaul and modernization of the FAA.

“He’s built a reputation of coming into organizations filled with challenges and successfully transforming them into successes,” said Sen. John Hickenlooper, D-Colo., during the hearing. “He takes on the big complex problems and gets results. This is the kind of person we want in our federal management system.”

Hickenlooper defense

Hickenlooper tweeted a response to the letter Thursday morning, denying that Washington would need a waiver to serve and highlighting that he’s been a civilian for two decades. According to a Hickenlooper staffer, the law governing FAA picks does not specifically define “civilian” in the same way as Defense Department nominations. 

“People calling for a waiver are just looking for a way to slow down a nomination they’re not going to vote for anyway,”  Hickenlooper wrote in the tweet.

Senate Commerce, Science and Transportation Chair Maria Cantwell, D-Wash., also said during the hearing that Washington wouldn’t need a waiver.

Cruz and Graves counter in the letter that Congress has interpreted civilian to mean a non-active or retired list of any of the armed services, pointing to a 1958 conference report on the Federal Aviation Act.

 There were no other Republican signees on the letter, but if it gains enough support, Washington’s nomination could be blocked in the Republican-controlled House.