Veterans Get Outside Day

Floor Speech

First of all, we have heard talk of clear legal authority, clear legal precedent.

I wasn't here when the distinguished Senator from Rhode Island was providing that, but my understanding of it is that he is making the claim that there are judicial precedents for this. At least one of the cases he cited was from 1981. Significantly, that is a full 3 years before 10 U.S.C. section 1093 was even enacted into law. Talk about excruciating ironies. That was enacted into law as part of the Defense Authorization Act for Fiscal Year 1985, and it was voted on by, among others, then-Senator Joe Biden. He voted for it.

So whatever 1981 case you are citing I don't know, but I am certain that it couldn't have involved 10 U.S.C. section 1093, the very statute that we are dealing with here, because it did not yet exist.

I am equally certain that whatever personnel within the Department of Justice that blessed this, whatever lawyers within the Department of Defense that blessed this are also part of the Biden administration and are ultimately serving at the pleasure of the President. So I wouldn't expect that they would come back with an answer that he didn't want because he and his administration have made clear that this is an all- of-government approach to make sure that the more abortions, the better, in the wake of Dobbs.

So I find it impossible to believe that any court could have addressed this particular issue, setting aside whether that 1981 judicial precedent that he cited that I haven't seen is the only one. Let's assume there were others. If there were others--there couldn't have been others even if they were decided after this was enacted into law in 1984 as part of the Defense Authorization Act for Fiscal Year 1985 because this policy didn't exist. No, this policy didn't exist until just a couple of months ago. So it couldn't have come up.

Courts don't answer these questions in the abstract. Under article III of the Constitution, the courts are empowered only to resolve cases in controversy. The case in controversy requirement of article III means that you have to have standing. To have standing, you have to have an injury, in fact, fairly traceable to the conduct of the defendant that is subject to being remedied by competent authority of a court. That would have been lacking here because until just a couple of months ago, this did not exist. They could not have addressed this. So I am not sure what authorities the Department of Justice officials to whom my colleagues are referring were relying on, but it is not a ripe controversy that could have been capably adjudicated.

But, yeah, this is truly full of excruciating ironies--the fact that the same President who voted to support 10 U.S.C. section 1093 which unmistakably makes clear that we don't want Department of Defense funding going to perform abortions. No, they rely on this argument that is reminiscent of Pinocchio in the movie Shrek 3. I think it was technically called ``Shrek the Third.'' Pinocchio, in that movie, gets away with all kinds of things by speaking in a form of legalese that would make any lawyer blush. It wouldn't be entirely untrue if I didn't say that I weren't entirely not opposed to this nonpolicy. It confuses people. That is sort of what they are doing here.

Now, look, if you want to make the argument that this is legal, first of all, I don't agree with it. This violates at least the spirit, if not also the letter, of the law. And even to the extent that it is somehow compliant with the letter of the law on a point that I am not willing to concede because this is, in fact, funding the process of getting abortions; this is, in fact, funding the endeavor of an abortion--something that we go out of our way in American law to do. This is one of the things that unite Americans of different political backgrounds, of different party affiliations.

Regardless of how you feel about abortion and under what circumstances it should or shouldn't be legal, Americans are overwhelmingly united behind the concept that we shouldn't use U.S. taxpayer dollars, thus forcing the American people at the point of a gun--because, ultimately, when you pay your taxes, you are paying at the point of a gun because, if you don't pay your taxes, people with guns are going to show up and make you pay. We don't force people, with the point of a gun, to fund abortions because we fundamentally recognize that is wrong regardless of how any individual feels about abortions themselves.

But this comparison is too cute by half. The very best I can say it is to analogize it this way: You really want to park in that handicap spot that is reserved for persons with disabilities and you are annoyed that it is there, so you park right up next to it, thus rendering it unusable space within the actual handicap spot. That is the best I can analogize this to.

To whatever extent you are complying with the letter of the law--and I don't concede that you are because I don't think you are--you are still really messing with the underlying purpose of the bill.

As to the point made moments ago by my colleague from Massachusetts-- a distinguished lawyer, a Harvard law professor herself--that this somehow is lawful because Department of Justice lawyers said it is lawful, this is the same Department of Justice that has from time to time made mistakes, and I am understating that quite significantly here. This is, in any event, a clear affront to the men and women who elected each of us.

These laws are policy changes. Yes, they saw the need for a policy change in 1984 when they adopted the National Defense Authorization Act for Fiscal Year 1985. They understood that to put that in place, they couldn't just rely on Department of Defense policy; they needed to put it in statute. So they enacted a statute to do that. This flies in the face of that. You are actively promoting, encouraging, and facilitating the performance of abortions.

Make no mistake, don't think of this as an evenhanded approach, one that aims broadly to facilitate reproductive care. No. The American people are not stupid. They cannot be fooled. We certainly must not be here. This is about Dobbs. This is about their disagreement, their fundamental rejection of Dobbs. This is about their fundamental disagreement and rejection of the notion that the U.S. Constitution doesn't give this authority over abortion to unelected judges who sit across the street in the Supreme Court of the United States. And it was never a constitutional principle to begin with. The Constitution doesn't address it. They disagree with that. I get it. But it is their disagreement about this that prompted this policy. They have been unmistakably clear about that.

Look, at the end of the day, this is a policy change. Policy changes need to be made by Congress--policy changes that involve a departure from the policy established in statute in the National Defense Authorization Act for Fiscal Year 1985, which remains legally binding and in effect to this very moment. If they want to get that changed, it is not incumbent upon those who oppose this policy to get the statute changed; it is those who want this policy to go into effect.

So I return to my long-used refrain. If Secretary Austin wants to make policy, he should run for the Senate. He can't set this kind of policy from the E-ring of the Pentagon. It is wrong.

As to the points about military readiness, look, I don't think there is anyone more concerned about military readiness than my colleague from Alabama. He sits on the Armed Services Committee. He is a faithful member of that committee. He performs his oversight responsibilities very faithfully, very conscientiously. Nobody is more concerned about military readiness than Senator Tommy Tuberville--no one. But to whatever extent this impinges upon military readiness--the fact that he has concerns with this and is therefore raising objections--that door swings both ways. If anything, it cuts stronger in the opposite direction. To the extent this is interfering with military readiness, we should set down this policy right now and allow Congress to decide this in connection with the National Defense Authorization Act for Fiscal Year 2024, which we will be turning to in the coming weeks and months. Let's let Congress decide that. In the meantime, set aside this policy--this policy that is a departure, a clear violation of at least the spirit if not also the letter of the law--and let that be decided. If, in fact, this interferes with military readiness, let's put this down and not allow American national security to be impaired by that.

Now, I don't believe we are in that position. I believe that while it is ideal for us to be able to move these nominees forward and get them moved, it is also very legitimate for a U.S. Senator to identify a problem, a simple problem arising out of the fact that the Department of Defense has a couple of things it wants to get done. It wants to get these people confirmed so that they can be promoted, and it also wants to put in place a policy. It wants to do both at the same time.

Senator Tuberville won't--in fact, Senator Tuberville can't physically--under the rules of the U.S. Senate, he cannot, he is physically unable to stop them from confirming these people. There are ways of going about it; it is just time-consuming to do it without his assent. So they want a shortcut, and they are asking for him to do them a favor--a favor that is unreciprocated--not just unreciprocated but a favor that he warned them he would not give them if they took this unfortunate step. He did that, I think, back in December. So knowing that as they did, they incurred this risk, to whatever degree.

They are right that this impacts military readiness at the expense of American national security. This is on him. He knew it would have this effect, and now he wants to force Senator Tuberville, shame him--to shame him into doing him a favor by expediting this process so that the Senate won't have to go through the additional steps that the Senate will have to go through in order to get these people confirmed without Senator Tuberville relinquishing it.

That is a shameful strategy on the Secretary of Defense, and he should be ashamed of the fact that he has become a policymaker. You can't legislate from the E-ring of the Pentagon. He has no business doing that here. He is thwarting, he is desecrating, he is disrespecting this institution and the sacred laws of our country-- passed with really good reasons--in order for him to promote his own woke policy agenda. Shame on him for doing that.

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Mr. LEE. Madam President, I want to be very clear about a couple things. No. 1, this is the law. It is not called the Hyde amendment. There is a thing called the Hyde amendment that applies elsewhere outside the military. The military, the Pentagon, has its own statutory provision. It is not the Hyde amendment; it is 10 U.S.C. section 1093, adopted in 1984 as part of the Defense Authorization Act for Fiscal Year 1985. It has been the law ever since then.

You can't use Pentagon money for this purpose, nor can you use Pentagon facilities for this purpose. Saying that you are not doing that even though you are paying people, you are giving them 3 weeks of paid leave time and paying all their travel expenses and their per diem in order to do this--that is openly flouting the spirit of the law, if not also the letter, in order to circumvent it.

I will go back to the analogy I used earlier. You go up to a parking space, thinking you want to park there, but it is a handicap space. It is reserved for people with disabilities. You don't have the disability symbol on your car, so you park next to it, but you deliberately park so close to the line that you render that spot unusable for anyone with disabilities who should need access to it. It still has the same effect because you are openly flouting the law. You are doing it in a deliberate attempt to cause the very same harms that particular law was designed to prevent.

Now, this is a policy choice, and it is a policy choice that Congress deliberately took away from the Department of Defense, deliberately took out of the hands of the Secretary of Defense. He seized that back.

Senator Tuberville saw this coming. Back in December, he told Secretary Austin in no uncertain terms: You should not do this. This is in violation of the law, and if you do this, there will be problems. I will no longer cooperate with you if you try to seek unanimous consent to facilitate the confirmation of these flag officer promotions.

He made that really clear.

Secretary Austin made his choice the moment he decided to legislate from the E-ring of the Pentagon. He took on that risk, and now he has the audacity, through surrogates in the Senate, to come back to Senator Tuberville and say: I got what I wanted. I did so in violation of the law. I am openly flouting the law--its spirit if not also the letter-- and I also want you to cooperate with me, Senator Tuberville. I want you to do what I say because that is more convenient for me.

That is not fair. That is not lawful. It is not legal. It is not kosher. It is not cool.

Look, the fact is, we could end this right now. I would love to end it right now. I can't speak for Senator Tuberville, but I have a sneaking suspicion he would let these go right now. He would let you get every one of these men and women confirmed this very moment if you take this thing off the table. But Secretary Austin took this hostage. He took all of these men and women hostage the moment he did this, having been forewarned by Senator Tuberville. He can't now be heard to come back--having waived his right to do that--to come back and demand that Senator Tuberville be somehow shamed into cooperating, into facilitating.

The other point here is, they can still get these people confirmed even without that compromise, which you could make tonight. If you put this thing off the table, you stop trying to achieve this through extortion, he will let them go right now. I am 99.99 percent sure of that, and that is pretty confident from me. He will do that right now. But even if you are not willing to do that, you could still get these people confirmed. You just don't want to do the hard work of doing it. It takes more time to do it without Senator Tuberville's full cooperation.

So, look, if you really are serious about end-strength readiness, then that is what you would do. That is what someone would do if they were worried about end-strength readiness.

Let's talk about that for a moment. End-strength readiness shouldn't be confused with flag officer promotions. It is not where we see end- strength readiness, with flag officer promotions. It doesn't mean these men and women aren't deserving of their promotions or we wouldn't be willing and interested to see them confirmed so that they can have their promotions. But to say that it affects end-strength readiness disregards what flag officers are doing in the capacity they hold. I am not aware of any reason why that would affect our end-strength readiness, nor am I aware of any compelling reason why, without this policy--this policy that openly flouts the law--our military would suffer from an end-strength readiness problem. It is an absurd argument. In any event, it violates the law. They can't do this. It is the wrong branch of government. He doesn't have this power. He was forewarned, and he did the wrong thing anyway. We don't reward bad behavior that way. We certainly don't reward unlawful behavior.

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Mr. LEE. With great respect for my friend and colleague from Massachusetts, the Pentagon itself acknowledged that while military abortions had been counted at maybe 20 or 30 per year in the past, this policy, which funds abortion--it just does--has increased to about 4,400 to maybe 4,500 a year. The causation and the number were estimated by the Pentagon itself based on this subsidy. This is a subsidy for abortion. They are, in fact, subsidizing abortion. The fact that they have engineered in a way that they think gets them around the technicalities of the law should mean very little to us as policymakers, as lawmakers, to the fact that they are openly flouting the law.

They are going through this trickery only because they don't like the law. They hate the fact that this became law, so they are trying to find a way to get around it.

They are, in fact, funding abortions. That is what you do when you pay somebody to travel, when you give them 3 weeks of paid leave to do something, when you fund their per diem--so you cover everything for them--you are funding abortion.

If the only argument you are left with is ``we are not paying for the actual surgery itself; we are just paying for everything around it,'' when the value attached to the travel, to the per diem, to the paid leave time is a significant expense--an expense that I suspect in many, if not most, instances would well outpace the cost of the medical procedure itself--that's too cute by half. They are, in fact, funding abortion. That is what this does. It is done knowing, expecting, anticipating, and desiring that this would increase the number of abortions performed in the military every year to a significant degree. That is what they are doing, and it is wrong.

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