[Congressional Record Volume 169, Number 144 (Thursday, September 7, 2023)]
[Senate]
[Pages S4330-S4332]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          MILITARY PROMOTIONS

  Mr. LEE. Mr. President, the American people are sharply divided on 
some issues. One of those issues is abortion. One group of people has a 
different idea about when human life begins and is worth protecting. It 
needs to be protected under law. It is difficult to reconcile the views 
of those who are in sharp contrast with each other given that one group 
thinks that human life begins earlier--much earlier--than the other 
group.
  As difficult as it can be to reconcile those competing viewpoints 
where Americans are so sharply divided, there is an issue related to 
abortion on which Americans are overwhelmingly and refreshingly united; 
that is, because both sides tend to recognize that a number of 
Americans are uncomfortable with abortion to the extent that we are, 
Americans overwhelmingly agree, with a vast supermajority being in 
agreement, that the Federal Government should not use U.S. taxpayer 
funds for abortions.
  To that end, Congress has passed laws providing just that. One 
specific law deals specifically with the U.S. Department of Defense. 
Codified in 10 U.S.C., section 1093, the statute, which has been on the 
books for decades, says that you may not use Department of Defense 
funding or facilities for abortions.
  Well, late last year, a rumor started circulating to the effect that 
the U.S. Department of Defense was considering adopting policies that 
would fund abortion travels, specifically allowing military personnel 
seeking abortions in a neighboring State or in a different State than 
where they were living or stationed to receive 3 weeks of paid leave 
time and compensated travel--air travel or otherwise--lodging 
accommodations, a per diem, et cetera, specifically to have an 
abortion.
  My friend and colleague, the distinguished senior Senator from the 
State of Alabama, Senator Tuberville, was concerned about this. In his 
sitting on the Armed Services Committee in the Senate, which he does, 
he visited with Defense Secretary Lloyd Austin and expressed his 
concerns about this rumored policy.
  He said: You shouldn't do this. This is inconsistent with the spirit, 
if not also the letter, of 10 U.S.C., section 1093. If you do this, 
there will be consequences, including, among other things, that I, 
Senator Tuberville, will be forced into a position in which I will 
delay the confirmations of flag officer military promotions.
  Regrettably, a couple of months later, Secretary Austin, in 
completely ignoring Federal law, in completely ignoring what Senator 
Tuberville had told him, proceeded with the policy anyway. By so doing, 
he made a decision to openly flout Federal law. The sole purpose of 
this policy is to try to find an all-too-cute, way-too-tricky route 
around what Federal law requires, flatly inconsistent with the spirit, 
if not also the letter, of the Federal law.

  Since then, there has been debate on this on the Senate floor. Words 
have been exchanged. People have strong views about this approach. But 
make no mistake, all Senator Tuberville is doing is saying that in the 
past, I, along with every other Senator, typically moved Heaven and 
Earth to expedite the confirmation of these military promotions to 
allow them to occur quickly. Most of them are not controversial.
  That is the norm, but these things require unanimous consent. And 
there is something about unanimous consent: It requires, as the name 
implies, actual unanimity, meaning any one Senator can raise an 
objection that makes expedited confirmation not possible. This doesn't 
stop the confirmation; all it does is require additional steps to be 
taken. It takes more time.
  Yesterday, we had a statement--a statement that was unfortunate, a 
statement that brings me to the Senate floor today--a statement made by 
Secretary Carlos Del Toro, the Secretary of the U.S. Navy. Secretary 
Del Toro, with whom I have worked on other matters in the past and for 
whom I have had great respect, made a very unfortunate and 
inappropriate statement. Here is what he said:

       I would have never imagined that one of our own senators 
     would actually be aiding and abetting communists and other 
     autocratic regimes around the world.

  This statement, to be clear, was talking only about Senator 
Tuberville saying: In light of this policy, which I believe is 
incompatible with Federal law, I am not going to facilitate the 
expedited confirmation of the nominees in question.
  That is all he said. Yet, for that, he was accused by the Secretary 
of the U.S. Navy of ``aiding and abetting communists and other 
autocratic regimes around the world.'' This is strange. This is 
unacceptable. And this body should emphatically, unambiguously reject 
the ad hominem attack against Senator Tuberville by Secretary Del Toro.
  Look, I get it. Sometimes passions are inflamed. Sometimes people 
feel really strongly about things. I hope and expect Secretary Del Toro 
will see the error of this and retract and apologize for this statement 
because he has essentially accused a Member of our body, a 
distinguished friend to the United States, to the people of Alabama, 
and to me personally, of treason, of directly jeopardizing the security 
of the United States and putting it at risk by aiding and abetting 
communist and other autocratic regimes around the world.
  Personal attacks against Members of Congress or other people based on 
policy views, policy disagreements--here, procedural, strategic 
disagreements--certainly violate the high standard of decorum that has 
long been honored and is typically held and exhibited by the leadership 
of the U.S. Armed Forces.
  Look, there are important things to consider when you evaluate this 
policy, this policy designed to flout Federal law.
  We have three branches of government. One branch, where we work, 
makes the law. The executive branch, where the Pentagon exists and the 
White House exists and all the executive branch Agencies exist--they 
are there to enforce the law. Then you have the judicial branch across 
the street, headed by the Supreme Court, which interprets the law when 
people disagree as to the law's meaning. We are the only branch that 
gets to make the law.
  The very, very first operative provision, the first clause of the 
first section of the first article of the Constitution--Article I, 
Section 1, Clause 1--makes clear that ``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 makes clear--even clearer--how this works. You 
cannot make a Federal law without passing the same legislation through 
the House and through the Senate--identical language--and then 
submitting that to the President--presenting it, as we say--for 
signature, veto, or acquiescence.
  If you don't follow the formula of Article I, Section 7, you have not 
made a Federal law. Once a Federal law is made, it cannot be changed or 
unmade

[[Page S4331]]

without going through that same process. But here, the Department of 
Defense seems not to have gotten the memo, and by ``the memo,'' I mean 
the U.S. Constitution.
  This oath of office that I have right here, this is an oath of office 
that is a prerequisite. It is required of all those elected or 
appointed to civil service or uniform service, that they have to take 
before assuming their duties in question. Here is what it says:

       I do solemnly swear (or affirm) that I will support and 
     defend the Constitution of the United States against all 
     enemies, foreign and domestic; that I will bear true faith 
     and allegiance to the same; that I take this obligation 
     freely, without any mental reservation or purpose of evasion; 
     and that I will well and faithfully discharge the duties of 
     the office on which I am about to enter. So help me God.

  That is codified in Federal law, adopted by Congress in 5 U.S.C., 
section 3331.
  Look, by swearing to support and uphold the Constitution, as this 
oath requires, as is required to do under Federal statute, anyone 
taking this oath understands that our Constitution expressly, 
explicitly, unambiguously, and exclusively empowers Congress to make 
the laws. Only Congress has lawmaking power. Only Congress may change 
the law. Only Congress may repeal the law. The other branches can't do 
that.
  Now, the outrage from Secretary Del Toro and, I would add, from some 
other Pentagon officials, including but not limited to Defense 
Secretary Lloyd Austin, sort of has a tendency to make it appear as 
though they have written a new oath, as it were.
  So when we look at this, we can imagine perhaps what they might be 
thinking. Whether they have gone to the trouble of rewriting it in this 
fashion or not, essentially what they have done is to come up with 
President Biden's own Pentagon-specific oath of office. It is as though 
they are saying: I do solemnly swear (or affirm) that I will make all 
laws that I determine are necessary and proper; that I will bear true 
faith and allegiance to the same laws that I have decided to make 
within the executive branch; that I take this obligation freely, 
without any mental reservation or purpose of evasion; and that I will 
legislate from the E-Ring of the Pentagon, which I am about to enter. 
So help me God.
  That, of course, is not the real oath. That oath, of course, is an 
abomination, and it is an affront to this body, to the other Chamber of 
Congress, and to the Constitution itself. This is an oath that rejects 
the Constitution. It empowers unelected and unaccountable officials--
officials who have never been elected to make laws--as supreme 
lawmakers.

  Secretary Austin and the civilian leadership of the service branches 
want us to believe that the sky is falling and that the falling sky has 
been prompted to fall by Senator Tuberville and that Senator Tuberville 
himself is somehow empowering communist and other autocratic regimes 
throughout the world, imperiling and endangering the United States. 
These are not just fighting words; these are words tantamount to an 
accusation of treason--words that are unfounded; words made with 
knowledge of their falsity or reckless disregard for their 
truthfulness; words that disregard what is actually happening here. 
These are not appropriate. These are way over the line.
  In reality, if this is where truly aiding and abetting communist and 
other autocratic regimes were concerned, if that is really what we were 
facing, if that is really where we were and American national security 
was being imperiled in the manner and to the degree these people have 
suggested, including and especially Secretary Del Toro, we would be 
looking at a very different outcome here. If they really believed 
this--which they do not, and we know they don't believe it because if 
we were in that situation, there are only one, two, maybe three 
possible outcomes at that moment: either the Department of Defense 
would ideally just suspend its attempt to circumvent Federal law and 
end its abortion travel policy--if they suspended this right now, 
either indefinitely or until such time as they could change the law to 
do what they want to do, that is the fastest way to do that. And I have 
it on good authority that Senator Tuberville would release his hold 
immediately and that these people could move forward very, very quickly 
on an expedited basis.
  If they want these people confirmed, that is all they have to do--
suspend that policy. I am willing to bet--I am not even a betting man, 
but I would bet here anyway--he would lift it. He would lift it today.
  Option No. 2, possibility No. 2: Senator Schumer and the Senate 
Democrats--if we really were in that environment where national 
security were being imperiled and we were strengthening the hands of 
hostile regimes all over the world because of Senator Tuberville; if 
that is really where we were just because he was requiring the whole 
process rather than expedited consideration of these nominees, well, 
then Senator Schumer and the Senate Democrats would take the time to 
bring these nominees up for a vote on the floor.
  You see, there are procedures by which we can bring them to the floor 
even with a hold. A hold is not a death knell. It is not a veto. All it 
says is ``I am not going to give my consent.'' Every Member of the 
United States has to consent to expedite consideration. They could 
still do it, but they are not.
  So one of those two outcomes or some variation of them--that is what 
we would be facing. But, instead, what are we looking at? Well, just 
the day before yesterday, the Senate held its first vote in 40 days, 
and it appears very, very likely that within just an hour or two, maybe 
three, the Senate will be recessing for the weekend and not voting 
again until Monday. So we have the ability to move nominees forward. 
Senator Schumer and the Senate Democrats have the ability to put them 
on the calendar. It would just take some additional steps. It takes 
time. But they are not doing it. They are not budging. Why? Because 
they know their words aren't true. They know their spewing of 
invective, unfair, defamatory accusations relates to facts that they 
don't even believe because if they believed them, we would be in a very 
different procedural posture.
  Look, whether you agree or not agree with Senator Tuberville's 
strategic decision here, whether you as a U.S. Senator or as an 
onlooker would have made the same decision--regardless of how you come 
down on that, regardless of where you are on the position of abortion 
or government funding for abortion, Senator Tuberville is well within 
his rights. These are rights that each individual Senator holds and 
owns uniquely, personal to them. This is consistent with his assignment 
on the Senate Armed Services Committee. He is doing the job the way he 
believes he should do his job in a manner consistent with how the 
voters in the great State of Alabama feel.
  So we have and we respect these rules, and we have respected them for 
centuries. Respecting the rules and the institution requires us to 
respect those with whom we disagree when it comes to procedural 
decisions like this one. We need to respect them not just in spite of a 
disagreement but especially in the face of a disagreement if we are 
going to uphold these rules, which have lasted for centuries and helped 
propel this body to the status that I hope it can live up to more 
completely, as the world's greatest deliberative legislative body.
  Yet it is interesting. To show that we really are not in this place 
where we would be if they took these things seriously, just yesterday, 
Senator Schumer, the Senate majority leader himself, commented, when 
asked about or in reference to his own refusal to put the confirmation 
of C.Q. Brown to be the Chairman of the Joint Chiefs of Staff on the 
Senate floor for a vote--here is what he said:

       This is a problem created by Republicans, and it's up to 
     them to solve it. . . . We're not going to shift the burden 
     to Democrats when this is a Republican-caused problem.

  This is nuts. What he is saying here is that, yeah, in the past, we 
would have expected to vote on the confirmation of the Chairman of the 
Joint Chiefs of Staff. In fact, in the 12\1/2\ years I have served in 
this body, I think we have voted on the Chairman of the Joint Chiefs of 
Staff individually and not as part of some massive, en bloc 
confirmation package. Yet he is not even willing to move the Chairman 
of the Joint Chiefs of Staff. It is not even that long of a process to 
get this person on the calendar. He is not willing even to do that. 
Why? Well, he told us

[[Page S4332]]

why--because he is having too much fun blaming Republicans for it. He 
holds the tools to get people confirmed. He is not willing to move 
them. He is not willing to budge an inch.
  Look, while Americans may disagree on the legality of abortion, and 
they do, there has long been this overwhelming, bipartisan, 
supermajority understanding first and foremost among the American 
people at large--and there has until very lately even been that 
bipartisan, overwhelming, supermajority consensus among Federal elected 
lawmakers--that Americans are against tacitly supporting abortion with 
their taxpayers dollars.
  The last time I read the Constitution, I noticed that, as I noted 
earlier, it is Congress that makes the laws, not the Department of 
Defense. Senator Tuberville is right to oppose this egregious policy, 
and he is well within his rights as a Member of the U.S. Senate to take 
this position. We should commend his courage and applaud his dedication 
to upholding his oath of office, his commitment to the Constitution, 
standing for those who cannot stand, let alone speak, for themselves.
  Even if you don't agree with Senator Tuberville on abortion or on 
Federal funding for abortion or on his particular use of this 
particular procedural remedy, you should at least respect it. If you 
can't respect him and show respect for his decision, you are showing 
disrespect for this institution, for its rules, and for our governing 
documents, including the Constitution, and for the entity, the customs 
and traditions that have helped preserve our unique form of 
constitutional representative government in America.
  Let this message to Secretary Austin and Secretary Del Toro be clear: 
If you want to make laws, run for Congress. You can't legislate from 
the E-Ring of the Pentagon. Until then, stand down and leave the 
lawmaking to the lawmakers.

                          ____________________