[Congressional Record Volume 169, Number 130 (Thursday, July 27, 2023)]
[Senate]
[Pages S3733-S3736]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MILITARY PROMOTIONS
Mr. LEE. Mr. President, as we wrap up our work in the National
Defense Authorization Act, we need to address an issue, an issue that
has been the focus of a lot of controversy. It has been the focus of a
lot of heated words. Now, I understand heated words happen around here.
It occurs; people feel passionate about things. But when heated words
become untrue words, defamatory words, fighting words, sometimes the
record needs to be corrected. This is one of those times.
Moments ago, the President of the United States--who, to put it
mildly, has not had a good week--made some comments that I regard as
not only insensitive, inflammatory, but also downright misleading and
unfair. He has made them about and directed them toward a Member of
this body, our friend and colleague, the Senator from Alabama, Senator
Tuberville.
These attacks against Senator Tuberville have been relentless.
Relentless all because he has chosen to take a stand, a stand against
what he properly, legitimately, understandably perceives as a violation
of the spirit--if not also the letter--of the law. The law in question
is codified in 10 U.S.C. section 1093.
And 10 U.S.C. 1093, in a nutshell, says that the U.S. Department of
Defense may not spend Department of Defense funds to perform an
abortion, and it may not use a Department of Defense property,
facility, to perform an abortion.
[[Page S3734]]
This has been in place for a long time. It has been in place for
decades. This, you see, represents something of an island oasis in the
debate of abortion, this idea about government funding. It is one of
the last bastions of our overwhelming bipartisan agreement when it
comes to abortion in America, which is to say, regardless of how people
feel about abortion in general--whether they support it, whether they
are against it, in what circumstances they might recognize it as
something that can appropriately be legal or not--what unites them and
unites them overwhelmingly along bipartisan lines is this: That, in
part, because of the widespread disagreement among the American people
about abortion, Federal funds shouldn't be performing abortions. They
shouldn't be used to promote or conduct or perform abortions.
It is a very simple matter. This can and does unite Americans across
party lines--and overwhelmingly so. And so it was with good reason in
another National Defense Authorization Act--we just finished up the
National Defense Authorization Act for 2024, at least the initial
Senate version of it. But it was in another National Defense
Authorization Act a few decades ago that, I understand, 10 U.S.C. 1093
came to be law, because the American people agreed then, as they agree
now, that regardless of how people feel about abortion, we ought not to
be using Federal funds, particularly in the military but also
otherwise, to perform abortions.
Well, late last year, the U.S. Department of Defense started
considering a measure to get around 10 U.S.C. 1093 for a method that
was at once really creative and too cute by half.
When I say ``too cute by half'' not as a compliment, I, indeed, mean
it as a criticism, because it cleverly attempts to step around the
stated purpose, intent, spirit of 10 U.S.C. 1093. And one could not
argue that you avoid the technical grip of its talents if you do what
the Department of Defense started considering doing last year.
They started thinking about saying, OK, well, let's say that we will
give 3 weeks of paid leave time and reimburse travel expenses to any
military woman who wants to get an abortion and needs to travel
interstate to do it. We will pay for their interstate travel, for their
lodgings, their meals, and 3 weeks of paid leave.
It is understandable why this would cause some consternation, because
the only purpose of this could be to flout, to circumvent the stated
purpose and effect of 10 U.S.C. section 1093. Technically speaking, one
could argue, yeah, this is not performing abortions, so you can get
away with it. Sometimes in the military, it is not just about getting
away with it; sometimes in the military there ought to be some concern
for whether the American people have a voice in this, and the fact that
their elected representatives have tried to take things like this off
the table, and not let them do that.
So Senator Tuberville saw this coming. He also understood--as I think
anyone rationally looking at it has the ability to understand--that the
distinction between this and providing funding for the performance of
an abortion is really difficult to differentiate. If you add up the
value, the economic value, of the 3 weeks of paid leave and add to that
interstate travel--in many cases, it is going to be interstate air
travel--and lodgings, meals, per diem for that period of time, at the
end of the day, performance of the abortion is going to be dwarfed by
that policy. It is almost the afterthought. It is the least expensive
part of all of that. And so, yeah, can you say that you have evaded the
letter of the law? Yeah, I think you can make that argument, but it is
too cute by half, and they are trying deliberately to flout this law
while claiming that they are respecting it.
So what did Senator Tuberville do? Well, Senator Tuberville serves on
the Senate Armed Services Committee. And in that capacity, he has
oversight authority, oversight responsibilities over the Department of
Defense. So he did what he felt was appropriate and what I think was
appropriate, and he decided to sit down with the Secretary of Defense
and just talk it out with him, rather than relying on the rumor mill to
either confirm or dispel what might be happening. He articulated his
concerns.
He said: Look, if you were to do this, it is just a poke in the eye.
You are doing it because you can get away with it for the time being.
So don't do it. And if you still do it, there will be consequences. And
then he spelled out what those consequences would be.
You see, in the Senate, when we confirm people, particularly when we
confirm people who are up for consideration for a military promotion,
there is a custom and practice that we don't require the full
procedures to be followed--the full procedures, which takes some time.
And so Senators, typically, agree to expedite that process so that
these military promotions can be considered as a group, en bloc, and on
a really fast-tracked basis. It is, nonetheless, a senatorial courtesy;
it is something that we choose to do. It is our choice, and it is the
choice of each Senator individually. Any one Senator can decide for him
or herself when, whether, to what extent to allow that person and where
to withhold it.
And so what Senator Tuberville told Secretary Lloyd Austin, the
Secretary of Defense, was simple: If you do this, I will not any longer
be able to justify giving expedited treatment to military promotions
for flag officers--you know, admirals and generals. I won't do that, so
don't do it, because you will be flouting the law. You will be flouting
the law in a way that may take a significant amount of time, whether
through litigation--if it follows that course--or through legislation.
Probably be able to run out the clock through the end of this
administration.
Senator Tuberville felt that would be an unfortunate result and
wanted to give Secretary Austin the chance to avoid it. So he said:
Don't do it; but if you do do it, it is going to take you a whole lot
longer to confirm your admirals and your generals.
Well, what happened? A month or two later, lo and behold, the
Department of Defense releases that policy: 3 weeks of paid leave and
compensated, reimbursed travel expenses, and per diem, for the purpose
of getting an abortion. Sure, they try to dress it up in other
language. This is about abortion. This is about Dobbs because the
administration doesn't like the Dobbs decision. It is mad that the
Supreme Court of the United States stood up for the plain text of the
Constitution.
The plain text of the Constitution does not make abortion itself
categorically a Federal issue and certainly doesn't prohibit to the
States the authority to protect unborn human life. It doesn't take that
away, and because it doesn't take that away, it is not an issue that
nine lawyers wearing robes can just decide, just graft it on to the
Constitution.
So the Dobbs Court reached that conclusion. Whether you agree with
the Dobbs Court or not--I do. It was right. But whether you agree with
me on that or not, it is the Supreme Court's ruling.
This is a temper tantrum. It is a temper tantrum by the Department of
Defense and by the Biden administration. They are still mad that they
lost the Dobbs ruling. That is what this is.
So they proceeded with it, and Coach Tuberville said: I told you what
I would do, and I am going to stand up for what I told you I would do.
This isn't right. You are encouraging, you are facilitating abortions,
and it sends the wrong message altogether. This is not something that
we are comfortable with the Department of Defense doing. We made that
clear in law decades ago. And you are doing this for the sole purpose
of flouting--of circumventing. So don't do it.
Now, it is clear as a bell: This doesn't stop anyone from getting
confirmed. There is not one person whom we stop from getting confirmed
simply because any one Senator decides that he or she isn't going to
continue to expedite the process. Every one of these people could be
confirmed. Essentially, every one of them could be confirmed in not a
whole lot of time. It would be some time-consuming processes they would
have to go through, but it is not overwhelming.
In the meantime, all this pressure is mounting. The message from the
White House and from the Pentagon has been to put the blame entirely at
Senator Tuberville's feet and to say that all kinds of horrible things
are going to happen--dogs and cats living together in the streets; Book
of Revelations
[[Page S3735]]
stuff, apocalyptic stuff is going to happen--and it is all Senator
Tommy Tuberville's fault. This is nonsense.
For those who have made that argument within this body, it is
uncollegial. For the President of the United States to jump on this
bandwagon and do the same thing--the President of the United States, a
longtime Member of this body who never served with Senator Tuberville,
but if he had, he would have known him and he would have liked him.
They would have been friends. Senator Biden, I have no doubt, would
have respected as a matter of senatorial courtesy what Senator
Tuberville is doing because we respect each other's procedural rights,
especially when standing on a sincerely held conviction. But that is
not what President Biden is doing.
He gave a speech just a little while ago. He begins with the words
``Something dangerous is happening.''
A few sentences later, he says:
The Republican Party used to . . . support the military,
but today they're undermining the military. The senior
senator from Alabama, who claims to support our troops, is
now blocking more than 300 military operations with his
extreme political agenda.
Let's talk for a moment about what is extreme. It is extreme to take
U.S. taxpayer dollars and use them to facilitate, promote, and
encourage abortion. That is extreme. It is also extreme for this
administration to refuse even to consider the possibility that maybe
they overstepped.
Now, there is dispute among people in the military as to whether or
to what extent any delay in the promotion of these members is a matter
of national security. I understand there are disagreements on that.
There are also no fewer than 5,000 veterans who have signed on to
support Senator Tuberville's Pentagon hold--5,000--who say that Senator
Tuberville's decision to place these holds is absolutely right and that
he is not to blame and that there are no circumstances in which Senator
Tuberville should be blamed for any impact on military readiness.
Now, let's step back for a minute, and let's just assume. Let's
assume for purposes of argument here that we are living in a world in
which there are legitimate national security ramifications flowing from
the nonconfirmation of any or all of the roughly 300 promotions we are
talking about. Let's assume that into existence.
If that is the case, to whatever extent that is true, what is true
for the goose is also true for the gander. It is not something that you
could put solely on Senator Tuberville, especially given the fact that
we could promote and confirm the promotions of every single one of
these people right now within the next 5 minutes. We could do it if
only this administration would stop trying to advance its radical, pro-
abortion agenda through every jurisdiction, every Department, every
Agency. This is an all-of-government thing. They don't care; they are
going to promote abortion in whatever way possible. All they would have
to do is say: You know, let's set that aside. In the interest of
national security, let's do that.
It is not as if members of the military choosing to get an abortion
are prohibited from doing so. It is not as though members of the
military choosing to seek an abortion are denied leave or denied the
ability to do this.
So what exactly are we fighting for, and to whatever degree this is
impairing and impacting national security, who exactly is doing this?
The President of the United States and Secretary Austin
both independently have at their disposal the ability to end this now.
So a national security threat? Not a national security threat? To the
extent it is, it is on you, President Biden, and you certainly can't
put this entirely at Senator Tuberville's feet. This is your doing. You
have chosen this route. He warned you that Federal law itself cautioned
against it, and you did it anyway.
It goes on a few sentences later:
This partisan freeze is already harming military readiness,
security and leadership, and troop morale.
He goes on:
Freezing pay, freezing people in place. Military families
who have already sacrificed so much unsure of where or when
they change stations, unable to get housing or start their
kids in the new school [because they are not there yet].
Here again, I get it. It would be great to get those people
confirmed. It really would. I would like to see them confirmed. So even
though this wasn't my decision--I wasn't in his shoes. I wasn't the one
who chose this particular option. But he is my friend, he is my
colleague, and he is a U.S. Senator who holds an election certificate
just like the rest of us and just like President Biden did for the many
decades he served in this body. He has every right to decide when and
when not to extend the courtesy of expediting these confirmations. He
went about it in a gentlemanly, courteous way, giving advance notice.
He rested his theory on a law that has been in place for decades that
is being flouted.
The President of the United States has the audacity to lay at his
feet any suffering, any misfortune, any unhappiness among these
families, any military readiness that may flow from it, when he himself
knows darn well that in order to score cheap political points with the
abortion lobby, he is willing to bring these things on. And then he has
the audacity to blame this on one Senator from Alabama.
Shame on you, President Biden. Shame on you.
He goes on:
Military spouses are forced to take critical career
decisions, not knowing where or if they can apply for a new
job. . . . a growing cascade of damage and disruption all
because one senator from Alabama and 48 Republicans refused
to stand up to him to lift the blockade over a Pentagon
policy offering servicemen and women and their families
access to reproductive health care rights they deserve if
they're stationed in states that deny it.
He can dress that up all he wants. It is still on him. He can call
this healthcare all he wants, but he is talking about a procedure that
has one purpose, and that is to culminate in the cessation of unborn
human life.
I find that difficult to take--difficult to take especially in the
face of 10 U.S.C. 1093, which on its face makes clear that the American
people don't want and have outlawed the use of military funds and
facilities to perform abortions. Why should we be willing to tolerate
something that indirectly, in a way that is way too cute by at least
half, openly flouts the intended purpose and spirit of that law?
He continues:
I think it's outrageous. But don't just take it from me.
Hundreds of military spouses petitioned to end the extreme
blockade.
One spouse, referring to the Senator from Alabama, said:
This isn't a football game. This nonsense must stop right
now. Enough.
You know, the military spouse quoted is right. This isn't a football
game. It is much more serious than that--in fact, far more serious.
This is about the law. This is about maintaining military readiness.
This is about making sure that our laws aren't openly flouted by those
charged with managing and directing the affairs of what is our largest
Department and one of the central, key parts of the Federal Government,
one of its main reasons for existing. It is not a football game, and
this business of openly flouting the law and the business of law in
which we work is also not a game.
You see, the fact is, Secretary Austin made a grave miscalculation
when he decided he was going to make policy and make policy utterly at
odds with the policy embodied in enacted law. You see, you can't
legislate from the E-ring of the Pentagon. It can't be done.
My copy of the Constitution, the very first operative provision of
that document, article I, section 1, says:
All legislative Powers herein granted shall be vested in a
Congress of the United States, which shall consist of a
Senate and a House of Representatives.
Article I, section 7, puts additional meat on the bones and makes
abundantly clear what is teed up in article I, section 1, clause 1. It
says that in order to make a law within the Federal Government, it has
to be through Congress. In order to make a law, you have to pass it
through the House and pass it through the Senate. Once you pass the
same text through both Houses of Congress, it has to be presented to
the President for signature, veto, or acquiescence.
Maybe he didn't get the memo on article I. Maybe he needs to be
reminded of the fact that he doesn't get to make law. It is not within
his prerogative.
[[Page S3736]]
He openly, brazenly and I believe very, very deliberately sought to
undermine the stated purpose, intent, effect, and spirit of 10 U.S.C.
1093. He chose to do that.
What is sad in this day and age, when the government is as big as
ours, a government that unwisely gives as much deference as it does to
the executive branch--not just to the President himself but those who
serve him in various capacities in executive branch Agencies and
Departments. In this day and age, it is almost analogous to the
expression that ``possession is nine-tenths of the law.'' As long as he
remains in charge of the Department of Defense, he can say up is down
and is surrounded by people who literally salute him every day and
people who follow those orders. Unless or until Congress does something
about it, he may get away with openly flouting the law.
(Ms. Cantwell assumed the Chair.) That doesn't mean that nobody in
the Senate can have anything to say about it, and it certainly does not
entitle the Secretary of Defense or the President of the United States
to have every Member of the U.S. Senate agree to continue to reward
them with continued deference and a grant of expedited consideration of
all military promotions, whether flag officers or otherwise. This is
not something they are entitled to. It is something that Senators
freely choose to give or to withhold. Here, he has chosen to withhold
it.
The beginning of the end of his speech says:
I urge Senate Republicans to do what they know is right.
On that point, I agree, and we will.
The PRESIDING OFFICER. The Senator from Vermont.
____________________