[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.

                          ____________________