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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.
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 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.
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.
____________________
SOURCE: Congressional Record Vol. 169, No. 130
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