Relating to A National Emergency Declared By the President on March 2020
Floor Speech
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Mr. LEE. Mr. President, I am here to stand in support of my friend and colleague from Alabama, Senator Tuberville, as he stands in opposition and raises his legitimate objections, which I share, to the Department of Defense's plan to use Federal funds to facilitate the performance of abortions.
Look, there has long been among the American people a pretty widespread supermajority of Americans--Republicans and Democrats making up that supermajority--who say, regardless of how they as individuals feel about abortions, they don't want U.S. taxpayer dollars going to fund or facilitate abortions. That overwhelming supermajority preference for that is reflected in legislation that Congress has enacted, codified in 10 U.S.C., section 1093.
So what has happened here is the Department of Defense has very cleverly disguised and very cleverly meandered around that so to technically comply with that statute. Instead of funding abortions and performing them on Federal facilities with Federal resources, they are facilitating, paying for the travel expenses--air, land travel, ground travel, meals--giving 3 weeks of leave in order to perform these. So they are still using Federal dollars to facilitate abortion, just in a way that is carefully gerrymandered around the text of 10 U.S.C., section 1093.
Now, I want to echo what Senator Tuberville said a moment ago about Senator Jack Reed. I have profound respect for him. I admire him as a Senate friend and colleague, as the chairman of the Armed Services Committee, as himself, somebody who has given enormously to his country with his service through the military and otherwise.
I do want to respond to a couple of points that he made because I don't think they lead where Senator Reed intended them to lead. He repeatedly described this as a civilian policy decision. Yes, this does embody a civilian policy decision, and it is a policy decision that is fundamentally legislative in nature.
Now, if he wanted this made, he could have easily come to Congress. The Congress, including the U.S. Senate, has long been deferential to the Department of Defense when they come to us and say: We need this or that. This will help us perform our mission to keep our Nation safe and protected from threats to our national security. We are a pretty generous bunch, especially when it comes to the DOD.
So why didn't they do that?
Well, I think they didn't do that--I know they didn't do that--for one simple reason: They knew that the answer would be no.
So, yes, the civilian policy decision--the last I checked, the organ, the branch, of the Federal Government that makes civilian policy decisions that affect the country--that bind the country with law--is this branch. We are the ones who get to set that. Now, sure. They are authorized to make a number of their own internal operating decisions; but whereas here, a policy is so blatantly at odds with the fundamental spirit of the Federal statute enacted into law, they have gone around us. They have carefully written it so as to gerrymander this policy around 10 USC 1093. They wanted nothing to do with us. What Senator Tuberville is doing here is standing up for our prerogative as lawmakers.
Article I, section 1, clause 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.
They want to go around that. I get that. But when they want to go around that and start doing our job, our prerogative is to tell them: It is going to take you a little longer to get some people confirmed.
While, yes, it would be very inconvenient if they had to go through the additional hoops--it is not impossible; they could do it; they could start; they could get a number of people confirmed--they are asking Senator Tuberville to make it easy for them. They want to have their cake and eat it too. So if they want his cooperation, they need to respect the legislative prerogatives of the Senate for which he is standing today. I admire him for doing that and stand with him in this.
As far as not injecting politics--political decision making--into the Department of Defense itself, he has got that exactly backward. He is making a political decision overriding our prerogative to do that and then blaming us for the issue.
Finally, with regard to Senator Reed's suggestion that we could deal with this in the National Defense Authorization Act that is coming before the Senate in the coming months, I get the point. If he is serious about that, I would like to suggest something to Senator Tuberville, and we can talk about this offline, perhaps after we vote. I suspect that if the Department of Defense wanted to really stand behind that, they could offer to suspend this regulation that they have issued--this policy memorandum they issued on February 16--until such time as we can debate it, discuss it, and work on it in the NDAA.
Look, let this be a message to Secretary Austin: If you want to make the laws, run for Congress; but you can't legislate from the E-Ring at the Pentagon. You cannot do that. Until then, stand down and leave the lawmaking to lawmakers.
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Mr. LEE. I would love to respond to that point.
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Mr. LEE. To the Senator from Hawaii, I would be happy--I would be thrilled--to accept that request, and I will accept it right now. I can't speak for Senator Tuberville, but I can speak for myself. I will absolutely accept that right now. Let's get them all done. Get the Pentagon to lift this policy--to suspend it--until we can get it ironed out in the NDAA. I will agree to that right now. If this is as bad, as dire, as apocalyptic, dogs and cats living together in the streets, Book of Revelation stuff, as you describe it, then we should do that. But lift the policy. You can't legislate from the E-ring of the Pentagon. We will stand up for our rights. And we must.
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