Military promotions stalled while Pentagon, Congress work out differences

Not every Senate action comes down to a nail-biting vote split. To speed up some duties, senators opt for unanimous consent votes for noncontroversial issues—like military promotions. In an average year, senators compile batches of people moving up in the ranks and promote them via a unanimous voice vote.

But this is not an average year, which Sen. Tommy Tuberville, R-Ala., reminds annoyed senators who have asked him to just go along with the process. About 300 service members are in the congressional pipeline waiting to move into their new positions because Tuberville has voted against the batch approvals for nearly six months. Per Senate rules, Tuberville’s “nay” vote places a procedural hold on the unanimous consent blocs.

It’s not the military officers who are controversial. They’re simply caught between the Pentagon, Congress, and abortion policy.

Last year, Secretary of Defense Lloyd Austin directed the Pentagon to offer paid leave and reimbursements for travel costs incurred by service members or their dependents when getting an abortion. Tuberville began blocking military promotions in February in protest of the policy. Democratic lawmakers and Pentagon leaders have protested that the backlog generated by the stalled promotions creates dangerous national security conditions, but they haven’t pointed to any specific vulnerabilities.

The 1976 Hyde Amendment outlaws the use of federal funds for abortions, medical benefits that include abortion, and anything that “facilitates” an abortion, though it allows exceptions in cases of rape, incest, and life-threatening risk to the mother. Legislators added an amendment in 1984 and revised it in 2013, applying these rules to the Defense Department as well.

“This is a taxpayer-funded abortion that nobody voted for,” Tuberville said about the DOD policy in floor remarks last month. “We are here to make the law, not the Pentagon.”

Tuberville has asked Senate Majority Leader Chuck Schumer to have the Democrats bring forward a bill that would allow the Pentagon to proceed with its policy. Republicans, only a few seats shy of the majority, could probably prevent such a bill from netting the required 60 votes. But with a packed agenda heading into the fall, Schumer is unlikely to bring such a measure to the floor. Tuberville says he’ll continue to vote against the batch promotions “until the Pentagon follows the law or changes the law.” He’s done so 12 times this year.

A 2022 memorandum opinion ruled the Pentagon policy actually fits into a legislative loophole. Assistant Attorney General Christopher Schroeder agreed with Austin that the Pentagon has express statutory authority to pay for travel because it does not actually fund the abortion itself. He argued that if Congress had wanted the amendment to apply to all related expenses, lawmakers would have specified. Schroeder also affirmed Austin’s argument that paying for travel falls under a “necessary expense doctrine” because it furthers the mission of the armed forces.

Another law gives the Defense Department the ability to pay for travel for “unusual, extraordinary, hardship, or emergency circumstances.” Austin claims that the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision creates just such a situation. The opinion also agreed with the DOD’s claim that military readiness, retention, and recruitment would suffer if service members and their families could not travel to a pro-abortion state.

Austin, in an Aug. 2 memo, said the blocked promotions harm the military. “This unprecedented, across-the-board hold is having a cascading effect, increasingly hindering the normal operations of this department and undermining both our military readiness and our national security,” he wrote.

But at a Senate Armed Services Committee hearing in April, Admiral John Aquilino of the U.S. Indo-Pacific Command said there is “no operational impact because simply put, the commander is not going anywhere until the proper replacement is in place.”

Last month, the Army asked 20 high-ranking officers to delay retirement or transitions to new roles until December. As of this week, the Army, Navy, and the Marine Corps are all headed by acting chiefs until formal promotions are confirmed.

Gen. Paul LaCamera testified at the April hearing that he is concerned some people interested in joining the armed forces will go elsewhere or others waiting on their promotions might resign rather than remain in limbo.

“We have folks that could be moving from Colorado, to Japan or Africa,” Pentagon spokeswoman Sabrina Singh told cleveland.com. “Their moves are on hold. Their spouses need to get jobs in their new states or countries, and their kids need to be enrolled in school, but it is hard to do that if you don’t know where you’re going to be living.”

Unanimous consent isn’t the Senate’s only option. Roll call votes on each promotion would require only 60 votes. Some Republicans have suggested using this method for nominees like Air Force Chief of Staff Gen. C.Q. Brown, Jr., who is President Joe Biden’s pick for the next Chairman of the Joint Chiefs of Staff.

But Schumer has been unwilling to spend valuable floor time on these alternatives. Earlier in July, Jack Reed, D-R.I., chair of the Senate Armed Services Committee, said roll call votes would take too long. He cited a Congressional Research Service analysis that estimated it would take 84 days of voting eight hours per day just on military nominations to get through them all. Lawmakers don’t have that kind of time: When its members return from recess, Congress is expected to jump into an appropriations fight to avoid a government shutdown yet again.

“The backlog is growing faster than the Senate, per Senate rules, could proceed,” Sen. Tammy Duckworth, D-Ill., said. “We could never dig ourselves out of this hole without Sen. Tuberville actually dropping his hold on the promotions.”

In 2020, Duckworth put a blanket hold on 1,100 military promotions until the DOD promised not to retaliate against Lt. Col. Alexander Vindman, a former National Security Council staffer who testified to a House committee on former President Donald Trump’s impeachment. She lifted the hold a few weeks later after then-Defense Secretary Mark Esper confirmed he had approved a list of promotions with Vindman’s name on it. Vindman retired before it took effect.

Not all Republicans are on Tuberville’s side. Alaska Sen. Dan Sullivan asked Senate Minority Leader Mitch McConnell to circumvent Tuberville and force a vote on confirming the Marine Corps commandant. McConnell disagrees with Tuberville’s hold but said he did not want to set the precedent of dividing the minority party.

Just before the Senate recessed, the Secure Families Initiative delivered to Tuberville a petition with more than 500 military spouse signatures. Organization leaders also delivered the document to McConnell’s and Schumer’s offices to ask them to pull the Alabama senator in line. The petition did not address the abortion policy.

“He has this policy disagreement with some over the legislation that the DOD has put out, and there are proper channels in order to address that and to move forward,” military spouse Tonya Murphy told NPR. “Holding our military members hostage in order to achieve a goal is not the right answer. Putting them in the current situation, where they do not have confirmed leadership, is not how you show support to our troops.”

Last month Tuberville circulated a letter with more than 5,000 veterans’ signatures supporting his hold and demanding the Pentagon remove the abortion travel policy.

“This policy is not just illegal, it shamefully politicizes the military, circumvents the authority of Congress, and exceeds the authority of the Department of Defense,” it reads. “The mission of the United States Military is to defend and protect all American lives—not subsidize the practice of destroying innocent and vulnerable American children via abortion with taxpayer dollars.”

Other workarounds are pending. Republican Sens. John Kennedy of Louisiana and Joni Ernst of Iowa proposed the Modification to Department of Defense Travel Authorities for Abortion-Related Expenses Act in March. It cleared the Senate Armed Services Committee just before the August recess. If passed, it would nullify Austin’s memorandum and clarify that taxpayer funds may not be used for any costs associated with abortions.

The Senate reconvenes on Sept. 5.