Alabama Sen. Tommy Tuberville has held up the confirmation of more than 260 generals for new command posts — including members of the Joint Chiefs of Staff and the head of the Marine Corps — over his objections to the Pentagon’s abortion policy.
Tuberville, a former football coach who is closely allied with former President Donald Trump, has refused to go forward with the routine confirmations and is essentially using defense policy as leverage to promote his cultural ideology. But the Department of Defense has repeatedly warned that holding up the confirmations is damaging the military’s chain of command at the highest levels, including the Joint Chiefs of Staff — especially concerning amid a time of increasing tension between the US and China, and as the US supports Ukraine against Russia’s invasion.
“These are our nominees who have incredibly important jobs all around the world, who are working with our partners and allies,” Deputy Pentagon Press Secretary Sabrina Singh said in an interview with Fox News Thursday. “And it sends a message to our adversaries.”
Any senator can hold up these confirmations, even if the other 99 wish to move forward with them, because of the Senate concept of unanimous consent, which is not a formal Senate rule but allows the body to make changes to regular order to expedite legislating such as allowing batch confirmations. Unanimous consent can apply to all different parts of the Senate’s legislative process — everything from limiting debates and amendments to scheduling votes — and essentially means that the body has decided to dispense with the Senate’s usual procedures in the interests of moving business forward. It’s not always part of the legislative process, but it’s used so often that there are rules and precedents surrounding it.
The Senate has long relied on unanimous consent to promote military personnel through batch confirmations, but with Tuberville’s hold, the only way to move the confirmations forward would be to vote on them one by one, through regular order. Sen. Jack Reed, a Democrat from Rhode Island and the chairman of the Senate Armed Services Committee, told the Associated Press that doing so would take up to 84 days with the chamber working regular, eight-hour days, or 27 days if they worked “around the clock.”
Tuberville’s hold, which could affect 650 military promotions by the year’s end, is based on a misrepresentation of how the Pentagon’s abortion policy works. And he isn’t the only Republican using legislation related to the military to force right-wing policies into defense policy. House Freedom Caucus members scored a victory this week when the House passed a version of the National Defense Authorization Act (NDAA) that included amendments limiting abortion, LGBTQ+ rights, and diversity, equality, and inclusion programs. “This bill has been transformed into an extremist manifesto,” House Minority Whip Katherine Clark told CNN after the bill passed.
In a macro sense, right-wing Republicans’ push to undo progress in the DOD both echoes and foreshadows their intent to halt the business of governing to try to codify policies that many Americans don’t support. And on a more specific scale, it affects the overall functioning of the military — everything from funding, to the chain of command, down to military families trying to plan moves to new bases. Tuberville and House Freedom Caucus members are also breaking with decades of Republican tradition by failing to support the military and military policy.
Tuberville’s hold misunderstands the Pentagon’s abortion policy
Tuberville has weaponized the tradition of unanimous consent to try to limit service members’ access to abortion, because he claims it violates the Hyde Amendment, which prohibits federal money being used for abortion.
However, Tuberville’s claims don’t actually comport with Pentagon policy, which allows service members or their families to take time off and use official travel mechanisms and funding, as they would for any other type of travel, to seek abortion care in another location. However, the Pentagon doesn’t pay for service members to get abortions, nor do the new policies provide for government health insurance to cover abortions — both of which the Hyde Amendment actually prohibits. Since 1993, the Hyde Amendment has made exceptions to allow federal funds to pay for abortion care in the case of rape or incest, or risk to the health or life of a pregnant person. That also holds true in the military, though available data indicates these cases are quite rare.
Defense Secretary Lloyd Austin laid out the updated abortion policy regarding time off and official travel in the wake of the Dobbs v. Jackson case that overturned the constitutional right to abortion. In an official memorandum on October 20 of last year, Austin wrote that “we have heard concerns from many of our Service members and their families about the complexity and the uncertainty that they now face in accessing reproductive health care, including abortion services.” In response, the DOD tightened privacy restrictions around reproductive medical care and set aside funding for abortion and reproductive healthcare providers within the military to get licensed in a different state should abortion become illegal in their current location, among other updates.
On December 9, Tuberville told Austin that he would follow through on a previous pledge to hold up general and flag officer nominations should the DOD implement the proposed rules, and he did just that this past March.
Tuberville’s complaint that the new policy goes beyond what’s allowed via federal statute isn’t accurate because there’s currently no statute preventing the expenditure of federal funds to travel for abortion care. Rep. Ralph Norman (R-SC) has introduced legislation to prohibit the use of federal funds to travel to obtain an abortion, but it has not passed the House, and Justice Department guidance to the Department of Health and Human Services explicitly states that Hyde should be interpreted to “prohibit only direct expenses for the procedure itself and not indirect expenses, such as those for transportation to and from the medical facility where the procedure is performed.“
Tuberville also showed his hand in January when he proposed legislation to permanently ban federal funding for abortion procedures. In a divided Senate, that bill likely wouldn’t pass, and so by pushing a similar policy shift where he has leverage, Tuberville has found a way to score culture war points.
As Vox’s Li Zhou pointed out Friday, right-wing Republicans are prone to using these kinds of must-pass bills to attempt to enact their most extreme policies:
Much like the debt ceiling legislation and annual spending bills, the NDAA is a prime opportunity for lawmakers to add unrelated amendments making policy changes to pet issues, since it has to pass every year. This week, Republicans capitalized on this opportunity to put forth controversial amendments favored by their right flank, including restrictions on abortion and LGBTQ rights. It’s a move that’s meant to send a message about their position on social issues, and it’s also one that makes what was a bipartisan bill much more contentious.
Even if they don’t succeed in changing policy, Tuberville and his colleagues in the House Freedom Caucus have telegraphed to their constituents and followers that they’re committed to extreme conservative policies on social issues.
What Republican meddling in policy actually does to the military
Defense Secretary Austin and Sen. Tuberville have been in discussions about the confirmation holdup. And as Air Force Brig. Gen. Pat Ryder told reporters in a Pentagon press conference Thursday, “Secretary Austin explained to Senator Tuberville the impact the holds are having to military readiness and uncertainty in the force.”
“As you’ve heard Secretary Austin say, this is a national security issue, and the fact that continuing to hold these senior leader nominations will have an effect on military readiness, given, in large part, the second and third order effects,” Ryder said, because of the military’s reliance on its “well-defined chain of command. And so any uncertainty that’s introduced about incoming or outgoing commanders and senior leaders can make it difficult to plan for or advance mission requirements.”
The chain of command is integral to the US military because it’s a mechanism that allows information to go both ways — orders and policies go down the chain of command, and problems to solve go up the chain of command. That system, according to the DOD, provides a structure for the military and supports its effectiveness as a fighting force; theoretically, orders are clear and come from a specific source, and there’s a mechanism for dealing with problems.
Gen. Eric Smith, one of the officers awaiting Senate confirmation, is the acting commandant of the Marine Corps — while still maintaining his post as assistant commandant. As he told Roll Call, Gen. Smith can’t release new policy or make major decisions in an acting capacity, because that requires Senate confirmation.
“When you’re acting, you cannot give fundamental strategic guidance to the institution. You are a place holder,” Mark Cancian, a retired Marine Forces Reserve colonel and a defense expert at the Center for Strategic and International Studies, told the New York Times Monday.
Tuberville, however, has dismissed concerns about Smith’s confirmation and his holds on high-level decision-making overall. “There may be a delay in [Smith’s] planning guidance and yet he cannot move into the commandant’s residence, but there is little doubt about Gen. Smith’s ability to lead effectively, even now,” Tuberville said on the Senate floor Monday.
If Tuberville continues to block the confirmations into the fall, he could directly affect the makeup of the Joint Chiefs of Staff. The staff chiefs of the Navy, Air Force, and Army are expected to step down during that time period, as will Chairman of the Joint Chiefs of Staff Gen. Mark Milley. The Joint Chiefs liaise with international military leaders and advise the president on military actions and policy.
Tuberville’s protest holds don’t just affect high-level officers. As Ryder explained to reporters on Thursday, “As promotions stagnate, it prevents lower tiers from being promoted into key positions, which creates a domino effect” for the military, for individual careers, and for military dependents and families who need to be able to plan their moves to a new base.”
Austin and Tuberville will speak again next week, according to Ryder. “The hope here is that Senator Tuberville will lift his holds,” according to Ryder.
Both Tuberville and the Freedom Caucus have shown that they can and will hijack critical legislation for their personal beliefs. The Freedom Caucus even came close to making the country default over the debt limit because it didn’t cut social spending enough. When it comes to the military, Tuberville and the Freedom Caucus are disrupting normal order and preventing spending even as they stoke anxiety about the rise of China. But all signs point to right-wing politicians continuing to use this tactic as long as they can — and holding both Congress and the Pentagon hostage along the way.