Unanimous Consent Requests--Executive Calendar

Floor Speech

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Mr. LEE. military, and nothing but respect for the service that they have dedicated to the United States as U.S. Senators.

I have nothing but respect for the brave men and women who have for two and a half centuries donned the uniform in defense of their fellow beings so that they might live in comfort and peace, while they offer up their last full measure of devotion, day after day.

I have nothing but respect for what they are trying to do in the sense that I know that they want the military to be all that it needs to be in order to protect the American people.

I certainly do share the concern that they express. But to the extent we ever put our armed services personnel in jeopardy because of political disputes, that is not ideal. We don't want to ever sacrifice military readiness because of a political battle, and it is because of that, and not in spite of it, that I am here tonight.

I want to be clear. The particular strategy deployed here is not mine. It is that of a dear friend and colleague who is here with me tonight. It is not my strategy. It is his. And it is because it is his that I am here to defend him in that, notwithstanding the fact that it is not the particular tactic that I would have chosen. He has chosen a tactic that is legitimate and that he has every right to deploy under the rules of the Senate--rules that go back nearly two and a half centuries in order to protect the individual rights of each Senator.

These have deep meaning under our constitutional system. In the U.S. Senate, we operate differently than they do in the House.

First of all, we have this role. In the words of the minority leader, we are in the personnel business, in addition to being in the business of passing legislation. Being in the personnel business means that we have got to review people as they come up for Senate confirmation.

We are also different in that every State is represented equally. In fact, the only change that you cannot constitutionally make to the Constitution by means of a constitutional amendment is that principle. You cannot amend the Constitution to alter the principle of equal representation among the States. And it is that very principle that is reflected in these Senate rules and always has been. Why? Because it is important to make sure that every State does have full representation-- that one isn't represented more than another.

The people of Alabama have elected my friend and colleague, the senior Senator from Alabama, to represent them. That is why they have these rights. That is why they are important to defend.

So notwithstanding the fact that any of us might have chosen a different tactic or different strategy to go about this, this is his right, and it is a right that I will defend to my last breath for the simple reason that it is his right to do it, and he is right to do it.

Let me explain what I mean by that.

The reason we are even here having this discussion is because we have some individuals who serve in the Pentagon, in the Department of Defense, who have lost sight of which is the branch of government in which they serve. We want them to be able, ready, willing at a moment's notice to do everything they need to do in order to defend this great Nation--the greatest civilization the world has ever known. To that end, their job is to serve in an executive capacity, not in a legislative capacity. These are not mere abstractions; these are fundamental, bedrock principles of our system of government.

Two independent provisions of the Constitution make this clear.

Article I, section I, clause 1--the very first operative provision of the entire Constitution--says that 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 VII of the Constitution makes this point doubly clear: that you cannot, may not, will not, must not ever pass a law, change a law that is a Federal law in our system unless you have a few things happen. You have to have passage in the House and passage in the Senate. Most of the time, it doesn't matter in which order; it just has to be the same legislative text. That text must then be transmitted to the President-- or presented, as we call it--for signature, veto, or acquiescence. If the President signs it or acquiesces, it becomes law. If the President vetoes it, it is returned to our respective Chambers, and it will not become law unless two-thirds of the Members of both Houses of Congress choose to overturn that veto.

Here is why this matters: We have had in place since 1984 a set of laws--laws that had been amended in 1996 and then again in 2003--that today are codified in 10 U.S.C., section 1093. Those laws make clear that you cannot use Department of Defense funds or Department of Defense facilities or property for abortions. You cannot do that. You cannot do that in the absence of rape, incest, or when the life of the mother is in jeopardy unless the abortion happens.

This, in turn, reflects a very simple and very longlasting truth among the American people, which is the American people come at the abortion issue from a wide variety of perspectives. There are some who believe that life begins at conception and that anything from that moment forward cannot be justified. There are others who believe that, until the baby is actually born and takes its first breath, the baby has no legally cognizable, protectable rights. There are some who would take that even further. I find it difficult to accept that some feel that way, but some really do.

Even though Americans find themselves at very different positions along this ideological spectrum specifically related to the issue of abortion, there is one point that unites Americans overwhelmingly and I mean to the tune of three out of four. Something in the range of about 75 percent of Americans agree on one thing--one thing--when it comes to abortion: You should not, must not ever use Federal taxpayer funds for abortion.

Why? Well, pro-life Americans, I think, find this explanation obvious. They don't like abortion anyway, so they don't want government funding. But it appears that about half the people who are not pro- life, who believe in some policies that recognize that somebody ought to have the ability to get an abortion--about half of them, it turns out, believe that we still shouldn't use Federal funds to do that because a lot of Americans are uncomfortable with that, and it is with good reason.

These policies have been around for a really long time and with good reason. Even though overall preferences, strategies, beliefs, public opinions about abortion have changed from time to time, this one has remained overwhelmingly against the use of public funds.

So it was surprising and alarming to my friend Senator Tuberville when, about a year ago, he started hearing rumors--rumors to the effect that the Pentagon would begin using Federal funds to facilitate abortions. He went and did as any faithful member of the Senate Armed Services Committee would: He met with Secretary of Defense Lloyd Austin, and he said: Look, I don't know whether these rumors are true, but if they are true, I find them alarming, and if they turn out to be true, I will have no choice as a member of the Senate Armed Services Committee but to make sure that there are consequences to you if you take this lawless act.

He had good reason to point this out. Look, the only reason for that policy, the only fathomable reason, is to circumvent the plain purpose, intent, effect of 10 U.S.C., section 1093. That is the only reason it is there, and they have written it ever so craftily so as to be able to have a colorable argument. I think it is an argument that flies in the face of the stated purpose, intent, effect of this Federal statute, 10 U.S.C., section 1093. It is so that they could argue: Well, we are not using it to perform the abortion; we are just using it to fly people to get the abortion, and then we are using it to pay for 3 weeks of paid leave time for anyone who has gone to get the abortion. We are going to pay their travel, their room and board, and everything else. We will pay for everything else around the abortion, but because we are not paying for the abortion itself, we are in the clear.

Now, Senator Tuberville recognized something very important: that the sole purpose of this policy would be to circumvent Federal law and to make it difficult to impossible to challenge it in a court of law. I will get back to that in a moment. So he did something right then and there--something that, whether you agree with the tactic used or not, you have to find admirable. He has taken the bull by the horns. He utilized the resources at his disposal, which is what any Division I champion football coach would do.

He did it, and he said: OK. If you do this, that is fine. I suppose-- well, it is not fine, but, you know, it is your prerogative to do that. But if you do that, I am going to exercise my prerogatives as a Senator, and my prerogatives as a Senator are such that I can require you to take the long way, the long road, the long and more difficult path instead of the shorter path that we nearly always use when we are confirming flag officer military personnel--that is, generals and admirals as well as political appointees--within the Department of Defense.

Now, let's understand something about a ``hold.'' A ``hold'' is not an inexorable block. It is not damning these people to Senate confirmation hell. It doesn't have that power. That is above his pay grade--all of ours. What he is doing is saying: There is the fast path, and there is the slow path. We always use the fast path, but that requires the acquiescence, the agreement, the unanimous consent of all 100 of us. If you don't do that, I, Senator Tuberville, will make you take the slow path.

Secretary Austin is a decorated war hero. Secretary Austin has been around for a long time. He knows the Senate. He knows the Pentagon well. He knew the risks. He chose to play chicken. He chose to look a U.S. Senator in the eye and say: Thank you. I will take that under advisement.

And, in a cowardly moment, he decided to arrogate to himself power that does not belong to him because the Constitution of the United States doesn't give it to him because you can't legislate from the E- ring of the Pentagon. No matter how strongly he feels, no matter how compelling his urge to facilitate the performance of abortion using Federal funds contrary to public opinion, contrary to Federal law, he does not have that power. Shame on him. It is to his everlasting shame that he would arrogate to himself that power and then have the audacity to blame Senator Tuberville for the slowdown that he himself knowingly, willfully, shamefully created.

So we now get back to this point that is impacting military readiness, that is creating an inconvenience for the flag officers who have been nominated. We are hearing now that it is even affecting people at a level below the flag officers. Now, that is curious because Senator Tuberville has never imposed holds--none of these holds have applied with regard to anybody below a flag officer level--general, admiral, one star, two star, three star, four star, or political appointee DOD-wide. Never. They haven't. So I really don't know where that argument is coming from. Perhaps they are saying it has a spillover effect downstream. Maybe that is the case. If that is the case, then I hope they will be clear in making that argument because otherwise that argument is just false; it is just not true. In any event, he is not stopping them. He is not stopping one of them. He is saying: You just have to take the slow path.

So let's be clear here. There are exactly two ways--two ways--that, regardless of Senator Tuberville's holds, regardless of whether he ever budges an inch, we can take care of this. Approach 1 could happen tonight. I guess it is technically morning. What is it? It is 12:56 or so a.m., so we will say this morning.

Right now, President Biden, if you are watching TV, pay attention. I am going to give you a really easy recipe to follow. You can do this even at 1 a.m. President Biden, if you are not awake, you really should be watching this because this is compelling television.

If you are staffing President Biden tonight, you might go wake him up. I think he will really enjoy this. I think he will enjoy it a lot. It is much easier to do than riding a bike, and you are not going to fall over while doing it.

All you have to do is suspend your Godless, lawless abortion travel policy. Just suspend it right now. If this is affecting military readiness, so be it. End it. End it tonight. You have a duty to do that.

Lloyd Austin, you can do it, too. Suspend your abortion travel policy.

Now, look, I know you guys feel really passionately about abortion. I know that for whatever reason, you have lost your freaking minds ever since that fateful day in June of 2022 when the Supreme Court of the United States ended a nearly half-century-long judicial hegemony over the issue of abortion. It ended that because, well, it turns out the Constitution doesn't say anything about abortion, and by saying nothing about abortion, it leaves the issue of abortion to elected lawmakers, not to nine lawyers dressed in robes. Most of the time, that means they leave the issue of abortion to State lawmakers, not Federal ones, because most of the time, it is not our role anyway.

I know, President Biden and Secretary Austin, you have been really upset about that. Why? Because, well, for a long time, the Supreme Court of the United States on this issue that is so important to you-- why, I will never understand, but I understand that you are mad because the Supreme Court, for that long period of time, was acting as your superlegislature that was willing to do your bidding and that of your party's. Your infanticidal ambitions were facilitated by this superlegislature across the street.

The only problem is, they didn't have any authority to do that--none. It cannot be found. So when they abandoned it, the day they abandoned it, President Biden announced all sorts of ambitious, whole-of- government approaches to effectively nullify a ruling of the Supreme Court of the United States--a ruling of the Supreme Court of the United States that is legally, constitutionally unimpeachable.

From that moment forward, you declared your own little jihad on the Dobbs ruling and on the Supreme Court. You have been trying to delegitimize Justice Alito, Justice Thomas, Justice Barrett, Chief Justice Roberts, Justice Kavanaugh, and Justice Gorsuch ever since then. You have threatened, through members of your party and through your appointment of this silly Commission you created, to pack the Supreme Court of the United States notwithstanding the fact that you, President Biden, stood on this very Senate floor decades ago and said correctly that it was a boneheaded idea when Franklin D. Roosevelt last threatened to pack the Supreme Court of the United States in 1937. It is a boneheaded idea today. You have been doing that.

Meanwhile, you try to do everything you can to make the lives of those Justices hell.

You have completely ignored 18 U.S.C., section 1507--a law that has been violated again and again and again outside the homes of the six Supreme Court Justices who had the courage and who had the appropriate jurisprudential temperament to recognize that abortion is not made theirs anywhere in the Constitution.

You have ignored the fact that people come to their homes to protest, that they come to the homes of these Justices to protest against them, disturbing them on vacation and when they are at home with their families; ignored the fact that people are showing up to the homes of these Justices not just to disturb their peace but to send a signal loudly and clearly, unmistakably, over and over and over again, that says: We know where you sleep. We know where your children lay their heads at night.

Yet, President Biden, you do nothing to enforce that.

Your Attorney General has instructed Federal law enforcement personnel, effectively, to stand down, ignore these violations. Shame on you, President Biden.

Look, I get that. Oh, that is in your little empire. You are the head of Article II. You are the head of the executive branch. If you don't want to enforce the law, we can't make you, just like we can't make you enforce the border as 8 million illegal immigrants have come across the border, carrying with them enough fentanyl to kill every man, woman, and child in America. And many of them have died, to the tune of hundreds of thousands. We can't make you enforce the law because you are the head of the executive branch. The head of the executive branch enforces the law--or it is supposed to. We can't make you do that.

But do you know what we can do? We can defend our own prerogative to make the law. Sure, once the law is made, you get to enforce it or decide not to. You shouldn't--and shame on you for not--but you get to decide that. You cannot make the law. You cannot rewrite the law. And shame on you, President Biden, for blaming this man. This man who is just trying to stand up for the law and for the unborn, you are blaming him for our supposed lack of military readiness.

I can't believe anybody buys this crap--I really can't--let alone anyone from the same party as Senator Tuberville.

We have all been elected on pro-life stances. Now, I understand, not everybody is going to share the same strategy. Not every one of us would choose this same approach. I didn't. But you are blaming the wrong guy.

There is an empty chair here--two of them, in fact; two empty chairs occupied by two executive branch individuals: Secretary Lloyd Austin and President Joe Biden, who could end this tonight, but they refuse to do so. That is avenue No. 1 for which we could end this.

Avenue No. 2, we could do as Senator Tuberville told Secretary Austin we would do from the very outset; that is, we could confirm them the slow way. We went 40 consecutive days and nights--kind of Biblical, really, if you think about it--without a single vote in August. We are about to go 10 or 11 more consecutive days and nights without a single vote.

We have gone days even when we were in session, where we will cast maybe one or two votes, at the most, and sometimes none. There are ways in which you can tee these people up.

You know the rules, Senator Schumer. You know how to call these people up. You know how to tee these up for a vote. Yet we are down here tonight--all of us Republicans.

When we talk about military readiness, why on Earth are we not aiming our remarks at President Biden or at Secretary Austin? Why on Earth are we not directing them at Senator Schumer? They all have the ability to end this. With Schumer, it would take longer. It would require more of an investment of time on our part, sure. Why are we not directing our arrows at them? Why are they going to Tuberville instead? I don't get it.

As to the suggestion made by one of my colleagues--my friend, distinguished colleague, the senior Senator from South Carolina--that this ought to be resolved in court; that courts of law are where we argue legal disputes; that most nearly all legal disputes should be resolved there, that is just wrong. That is just dead wrong.

The fact is, as any lawyer, any member of the bar, any officer of the court knows, most legal disputes never make it to court. There are a lot of reasons for this. Some of them involve expensive litigation. Some of them involve jurisprudential standards that don't always permit a legal challenge to be brought. Among other things, you have to establish what is called Article III standing. You have got to show an injury, in fact, squarely traceable to the conduct of the defendant that is capable of being redressed by a court of competent jurisdiction.

Many cases, many disputes arise in a context in which it would be difficult, if not impossible, to find someone with Article III standing who is even allowed to challenge these things in Federal court.

I, respectfully, submit that it is like a needle in a haystack, in a haystack on a distant planet, a really, really difficult case in which to even imagine, even fathom someone with Article III standing who could do it.

Senator Graham referred to some legal experts, legal scholars whom I respect and admire, who have been looking into this. I have looked at their written work product, and it is excellent, but even they acknowledged it is not at all clear you could even find anyone with standing.

This is exactly the kind of case that needs to be argued, that needs to be settled not in the courts of law because it can't; it must be resolved here, here in the branch of government that is charged with making the law and that is also charged with overseeing the branches of government that execute, implement, and enforce the law-- the executive branch. That is our job. This is where it has to be done.

So, look, if you want to give the farm away, if you want to say we are just going to leave it alone, that is fine. But let's not kid ourselves. No court is coming to the rescue. It is not going to work. You are not going to find anyone with standing, I can almost guarantee you. And even if you can find somebody with standing, they have crafted this thing so deliberately, so maliciously, so carefully as to make it nearly impossible for anyone who even could establish standing--which they can't--to succeed on the merits because at the end of the day, they will look at them, and they will say: Gosh, shucks, we didn't do that. We didn't perform any abortions. All we did is we just, you know, drove the people to the State or flew the people to the State where they are going to get the abortion, and then we paid for their motel, their room, board, lodging, gave them 3 weeks of per diem in order to do it. No, we didn't do any of that.

So by a rigid, textual analysis, which probably would be the one that would prevail in a court of law, you would lose.

Even if you could find somebody with Article III standing--which you can't; you are not going to find that--what remedy is there?

If we are we are going to allow the laws that our branch of government has made, if we are going to allow that law or the law in general to be an ask, then, fine, let it go. But let's not kid ourselves. This isn't getting fixed in a court of law. We have got the remedy here.

Whether you agree with Senator Tuberville's initial decision to do it this way or not, don't spit on me and tell me it is raining. Don't walk in here and tell me there is another solution. Don't walk in here and tell me that courts of law are where all legal disputes have to be resolved when you know darn well a lot of them can't, and this one sure as heck won't be.

It saddens me deeply that this many brave men and women have been delayed. It troubles me deeply to consider the many families whose lives have been disrupted by this. But I respectfully submit, with all the passion I am capable of communicating at 1:10 in the morning, at a bare minimum, you are wrong to just blame him. I don't think you should be blaming him at all.

Secretary Austin and President Biden, you set in motion a sequence of events that you knew darn well would culminate in this very thing. You knew darn well that you would use this as an opportunity for demagoguery. That is not cool.

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Mr. LEE. It is a country that has thrived precisely because we have sought, since the moment of our founding, to live under the rule of law; that when we make a law, we do our best to follow it.

It doesn't always work that smoothly. I know the process of making law and enforcing law and interpreting the law can be messy. People have strong opinions about what the law ought to be, how it ought to be enforced, what the law means. But, you know, we have been at our best when we accept the fundamental premise that although the task may be difficult and although people might reach different conclusions regarding what the law should be, how the law ought to be enforced, and how it ought to be interpreted, that there is a right answer.

We might not all agree on what the right answer is, but if we agree that there is a right answer and it is our obligation to find it and then defend it once we have found it, we are going to be better off.

One of the things that differentiated our form of government from that of our mother country is the twin set of structural protections in the Constitution that separate and divide power. Our Founding Fathers understood, through sad experience, that it is the nature and disposition of almost all men and women everywhere, as soon as they get a little authority, a little power, that they will begin to exercise what we call unrighteous dominion; that is, they have a tendency to abuse their power. They have a tendency to become tyrants, petty or grand. To that end, they understood something about human nature. They understood what Madison described in Federalist No. 51; that if men were angels, we would have no need of government. If we had access to angels to govern us, we wouldn't need rules, we wouldn't need constraints around government power. But, alas, we are not angels. We don't have access to angels. Angels are not to be found among us, certainly not in the E-Ring of the Pentagon, certainly not in the White House today. They are no angels, neither are we. But we have rules.

To that end, our Founding Fathers sought to subdivide power, to slice it and dice it. In short, they separated out power along two axes, establishing these two fundamental structural protections that really have helped foster the development of the greatest civilization the world has ever known.

The first of these structural protections operates on a vertical axis. We call that Federalism. It says that most power in our system of government doesn't belong in Washington, DC. It doesn't belong at the national level. It belongs at the State and local level where most of the power is reserved.

It says that only a few powers designated as Federal, as national, by the Constitution will be lodged within the Federal Government. Among those powers, just a few basic national authorities: the power to regulate trade or commerce between the States, with foreign nations, and with the Indian Tribes; the power to come up with a uniform system of weights and measures, a uniform system of immigration and nationality laws; the power to develop courts inferior to the Supreme Court of the United States, a system of bankruptcy laws and bankruptcy courts; the power to declare war, to establish an army and a navy and to regulate the militia, what we today call the National Guard.

And there is my favorite power, too often referred to as the power to grant letters of marque and reprisal. Marque, in this context, is spelled m-a-r-q-u-e. The letter of marque and reprisal, to put it succinctly, is basically a hall pass issued by Congress in the name of the United States that allows the person possessing it to engage in state-sponsored acts of piracy on the high seas. In short, you get to be a pirate.

Each of these powers are relatively minor. All of them together are still relatively minor compared to the bulk of the power reserved to the State and local governments around the country. To the extent that we have respected those limits, those distinctions between State and Federal power, we have benefited materially as a country.

Tragically, over the last 86 years, we have deviated from that, and that has caused problems. It has spilled over and helped erode not just the vertical protection we call Federalism but also the horizontal protection we call separation of powers. And I will turn to that now.

Under the principle of separation of powers within the Federal Government, the Founding Fathers set up three distinct branches. One branch, the legislative branch headed by Congress, consisting of a House and Senate, would make the laws. Subdivided between these two branches, these two Chambers of the legislative branch--because they knew that it would be more difficult to abuse the power if you split it up more, so they did--another branch, the executive branch, headed by an elected President, whose job it is to enforce the laws--or it is, at least, supposed to be; and a third branch headed by the Supreme Court and including such inferior courts as Congress might choose to ordain and establish from time to time, whose job it is to interpret the laws.

Now, between these three powers--let's face it--they are not really equal branches. They are coordinate branches, but they are not equal in their power. By far, the most dangerous branch is the branch that we inhabit and is the branch in which we serve, in which we find ourselves this fine evening, because the power to make law is the most dangerous power in government. And it is for that very reason, Mr. President, the Founding Fathers wouldn't entrust that to anyone other than the branch of government most accountable to the people at the most regular intervals--because it is dangerous.

The other two branches, if you think about it, really exercise powers that are derivative of ours in one way or the other. The laws that the executive enforces must first be passed by us. The laws the judicial branch interprets must first be passed by us. That is why it is so important that we safeguard this, that we make sure that no one else from outside the legislative branch of government seizes that power. Why? Because they are not accountable to the people at the most regular intervals.

You can fire every Member of the House of Representatives every 2 years. Their voters have the chance to do that with all of them every 2 years. From the Speaker of the House to the most junior Member, they can all be fired by their constituents every 2 years.

A third of us in this Chamber can be fired every 2 years. My constituents opted not to do that last year. I had the chance, and they decided to keep me for another 6 years, and I am grateful for that.

But we are all accountable. That same accountability does not apply in the executive branch. It sure as heck doesn't apply in the judicial branch. It is one of many reasons why you can't legislate from the E- Ring of the Pentagon. You cannot make a new law, you cannot change existing law from the executive branch.

Now, I know. I know. I know. We have gotten lazy. We have gotten lazy because since April 12, 1937, a day which should live in infamy in American history but a day that is seldom even mentioned, much less studied in grade school, intermediate school, high school, college, even most law schools, is the day the Supreme Court messed it all up, really leading to the erosion of both the vertical protection we call Federalism and the horizontal protection we call separation of powers.

April 12, 1937--that was the day when the Supreme Court of the United States, by a vote of 5 to 4 in a case called National Labor Relations Board v. Jones & Laughlin Steel Corporation, reinterpreted one provision of the Constitution--article I, section 8, clause 3--the Commerce Clause, to mean something different, something different than it had ever meant. Ever. It had always meant, prior to that time, that Congress had the power to regulate a couple of things: No. 1, interstate commercial transactions.

Person A lives in Virginia, wants to sell tobacco to person B living in Maryland. That interstate commercial transaction can't adequately be covered by the laws of either Virginia or Maryland, so Federal law has the ability to cover it--interstate commercial transactions. Secondly, channels or instrumentalities of interstate commerce: interstate airways, airwaves, waterways, and so forth, because, there again, the laws of no State are sufficient to cover that interstate event-- something carrying something else or someone else across interstate lines.

Prior to that time, that is all the Commerce Clause meant. On April 12, 1937, the Supreme Court amended the Constitution, amended it without going through the article V amendment process, a process that is deliberately difficult. Why? Well, because that is the whole darn point of having a Constitution, is to make it difficult to change. Some of our laws must not be easy to change.

So the Supreme Court amended the Constitution, gave themselves power that was not theirs to redefine it, to include any power that, when measured in the aggregate, though, carried out intrastate--not part of an interstate commercial transaction, not part of a channel or instrumentality of interstate commerce, in the aggregate, had a substantial effect on interstate commerce.

What does that mean? Well, that is all legalese for Congress can regulate just about anything it wants. If it can dream it, it can regulate it, as long as it uses the right words.

Since April 12, 1937, the Supreme Court has invalidated exactly two laws--only two laws--as outside Congress's Commerce Clause power--one involving provisions of the Gun-Free School Zones Act in a 1995 decision called the United States v. Lopez and another case involving a few provisions of the Violence Against Women Act in the year 2000 in a case called United States v. Morris. There is a third case that arguably makes the list but, ultimately, gets cut from that list--NFIB v. Sebelius--which the Supreme Court decided in 2012, concluding that the ObamaCare individual mandate was, in fact, in violation of, in excess of Congress's Commerce Clause authority but then went on to rewrite the same statute--not once, but twice--in order to save it from an otherwise inevitable finding of unconstitutionality. So that one doesn't count.

So because since pretty much everything has been part of our legislative prerogative, Congress has choked on its own power. Members of Congress couldn't handle that much power. Members of Congress didn't want to go to all the work of all that power. So Members of Congress started delegating out the lawmaking powers to other branches of government. In short, we have gotten lazy, we have gotten sloppy; and it has inured to the everlasting detriment of the American people, who find themselves subject to a Byzantine labyrinth of Federal regulations that cost the American economy between $2 and $3 trillion a year to comply with.

Those compliance costs are borne not by big, wealthy, blue-chip corporations or some guy that you imagine wearing a double-breasted suit and a monocle like Mr. Peanut. No; they are borne by hard-working Americans who pay higher prices on goods and services and everything they buy, and they pay for it also with diminished wages, unemployment, and underemployment.

These things are not free, you see. You mess with Federalism, you destroy Federal separation of powers.

Incidentally, you know how this decision was arrived at? Well, Associate Justice Owen Roberts panicked. He got scared because President Franklin D. Roosevelt threatened to pack the Supreme Court of the United States with as many as 15 Justices. Justice Owen Roberts, looking outside the case, looking beyond the law, decided to just rewrite the Constitution rather than run the risk of Court packing. Shameful, really, but it led to where we are now.

I keep in my office two stacks of documents behind my desk. One stack is short. It is a few inches tall. It consists of the laws passed by Congress during the previous year. It is usually a few hundred to a few thousand pages long. It stands about that high. The other stack of documents, during any given year, will come to a mass of about a 13- foot-tall stack. I keep them in three adjacent bookcases. These are in bound volumes, double-sided, very small print, very thin pages. Last year's Federal Register.

The current year's Federal Register--our current Federal Register, by the end of this year, will have reached about 100,000 pages. These pages contain law--new law, law that, if not complied with, can land you in prison, can get you fined, can get you banned from this or that Federal program. It can deprive you of life, liberty, property just the same as any law passed by Congress, only it is not a law passed by Congress.

It is reminiscent of Federalist No. 62 in which James Madison, rather eerily and with great prescience, warned it will be of little avail to the American people that their laws may be written by men of their own choosing if those laws be so voluminous, complex, and ever-changing that they can't be read and understood by the American people, if they can't know from one day to the next what the law is today and what it will be tomorrow.

Those words still echo in our ears today when we see not only are those laws so voluminous and ever-changing and complex that we can't read and understand the law, know what it means and says from one day to the next; they are not even written by men and women of our own choosing.

That is why it matters, that this document written back in 1787 still matters. We have all sworn an oath to uphold it. And what it means is you can't legislate from the E-Ring of the Pentagon. You can't make a law, you can't change an existing Federal law from the executive branch of government, unless you are the President of the United States and your sole role in lawmaking is signing, vetoing, or acquiescing to a law duly passed by the House and the Senate. You can't make a law; you can't change a law--not from the E-Ring of the Pentagon, not from the Oval Office, not from any quarter of any part of this town or this great land or this entire world outside of this Chamber and the Chamber just down the hall from us. That is why it matters.

So, yeah, this is about life. Yeah, this is also about the military. But we swore an oath to that Constitution. We swore an oath that we will make the law; we will not delegate that law to somebody else; we are not going to let somebody else make the law--especially a law that is destructive of life, liberty, and property, as that is, ultimately, the sole purpose of government: to protect life, liberty, and property.

Quite ironically, the bigger, the more out-of-control, the more unrestrained, the more unaccountable any government becomes, it is inevitably the consequence of that government that it becomes destructive of life, liberty, and property. That is how we got to where we are here, where a branch of government not entitled to make the law has made law and has made law to facilitate the taking of unborn human life.

My colleagues who are here tonight, whom I love and respect, are blaming the wrong culprit. It is not Tommy Tuberville. It is Joe Biden, Lloyd Austin, and Chuck Schumer. Let's keep that blame where it belongs. Let's not fool ourselves into thinking that this can be remedied in court. It can't. It won't. We all know that.

We are going to stand up for the unborn who cannot speak for themselves. We are going to have to do it. If we are going to prevent somebody else from making law when it is not their prerogative, it has to be us.

Mr. President,

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Mr. LEE. Will the Senator yield for a question?

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Mr. LEE. I have got a question relative to that. Will the gentleman yield for a question?

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Mr. LEE. Will the gentleman yield for a question?

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Mr. LEE. Mr. President, the late Associate Justice Oliver Wendell Holmes, Jr., used to say: There is a point of contact in every case. He defined that point of contact as the place where the boy got his finger caught in the machinery.

Secretary of Defense Lloyd Austin got his finger caught in the machinery. Hence, defining the point of contact in this case, in this dispute, when he decided to circumvent the plain intent and effect of 10 U.S.C. 1093, plainly prohibiting the use of DOD funds to perform abortions. He did that with clear intent to avoid the impact of the law while purporting to comply with it. He did so shamefully.

I appreciate my colleagues Senator Ernst and Senator Sullivan for their service to our country. Their service, along with that of Senators Graham and Young, who were with us earlier tonight, is admirable, as is their service in the U.S. Senate.

The service to our country exhibited by Senator Tuberville is no less to be commended, no less to be admired. I, frankly, resent the suggestion, to the extent anyone is making it, that he is any less qualified to make these arguments simply because of the fact that he hasn't worn that uniform. He has every bit the right to do that. I do appreciate the comments made by my colleague Senator Ernst moments ago to the effect that this is, in fact, President Biden's fault; this is, in fact, Secretary Lloyd Austin's fault; that this is, in fact, Senator Chuck Schumer's fault. I appreciate that.

Nonetheless, the majority of the remarks that we have heard tonight, this morning, have not suggested in any way, shape, or form that the true call to action really is being directed to President Biden, to Secretary Austin, or to Senator Schumer.

We have been asked the question over and over again: Why punish the innocent? Indeed, why punish the innocent? Do you know who is innocent? Babies. Do you know who doesn't have a voice in the Senate? Babies. Do you know who can't speak for themselves? Babies.

You know, a baby doesn't have a name. A baby doesn't have a military rank. A baby doesn't have a professional career upon which to rely, upon which he or she can have people rallying around the baby in defense of that baby's life. It is one of the many reasons why Congress saw fit to adopt 10 U.S.C section 1039: to make sure that the Federal Government didn't contribute to this. The U.S. Department of Defense is supposed to kill America's enemies, not her babies.

Regardless of how you feel about pro-life issues, you have got to accept the fact that Americans, by a margin of three out of four, are not willing to tolerate the expenditure of U.S. taxpayer funds for abortions. This isn't honorable; this isn't noble.

And, no, you cannot conflate this. You can't distract from it. You can't obfuscate the barbarism inherent in this policy simply by referring to the illustrious resumes, to the amazing job qualifications of one-, two-, three-, and four-star Generals.

It doesn't fix the problem, not even for an instant. It begs the question: How many future Generals, how many future Admirals are going to be aborted by this policy, by the Pentagon itself?

Who can't go out and hold a press conference? Well, we are told tonight it is the one-, two-, three-, four-star Admirals and Generals. Babies also can't do that.

My colleagues posited over and over again tonight in a way that I found, frankly, very offensive, that we are somehow afraid to have the credentials of these military men and women read from the Senate floor. If they think that they read us wrong, 180 degrees wrong, we are not afraid of that, not for an instant. Our quarrel is not with them. Our quarrel is with those who would circumvent the law in order to kill children.

Any society that sacrifices babies for the convenience of adults is in for a rough ride. I resent, also, the fact that some on the Senate floor tonight have implicitly challenged our patriotism, our gratitude for our soldiers, sailors, airmen, or marines, even our national security, because we stand behind one man's effort to protect the unborn who can't speak for themselves, who can't fight for themselves, who don't have a name or a military rank to secure their position in life.

We have been told over and over again that these one-, two-, three-, and four-star Generals and Admirals are being punished for something they had nothing to do with. Here again, the same can be said of the babies whose will be snuffed out with the assistance of U.S. taxpayer dollars.

We are told over and over again about how pro-life these speakers are. And I don't doubt that they are, but one minute they are uttering those words, and the very next minute they are accusing Senator Tuberville of jeopardizing our national security or not caring about the families of these individuals.

I am sorry. That is not fair, nor is it helpful for them to dismiss it or passive aggressively suggest: Well, we just have to deal with this. We just have to find a solution. Well, then find one.

Look, I get it. They don't love the tactic he has chosen. It is not the one I chose, not the one they chose. But it is what he has chosen. If they are going to passively aggressively tell him that he has to find another solution to protect the unborn, then they had darned well better direct him to one. But they haven't. The closest they have come is to suggest litigation.

Litigation is of no avail. There is not any plausible existing human who has article III standing to challenge this. And, moreover, even if we could find one--which we can't--this is the kind of insult to the law, the kind of violation of the law, the kind of effort to circumvent the law that is not likely to prevail in the courts. It is almost certainly doomed to it.

So, no, litigation doesn't solve the problem. That is, moreover, just punting to the judicial branch of government something that is a distinctively legislative task. That doesn't do it for me.

The fact that they say over and over again, ``There has got to be a better way,'' if there is one, then help him find it. But don't just tell him he is wrong for standing up for this without giving him a plausible path in a different direction.

Let me outline just a couple of different paths that I think we could pursue--and I would like their help in getting them. I would like to know whether they would be willing to join with us. Why not have Republican Senators say, We are not going to pass the National Defense Authorization Act unless we fix this issue? Why not have them sign up and say, We as Republicans either aren't going to do that, we are not going give another dime to nonmilitary aid to Ukraine or to Gaza or who knows whatever else, unless they fix this problem in statute or unless the Pentagon and the White House withdraw its abortion travel funding policy?

Those are just a couple of ideas. Those are actually productive ideas. And I would love to know whether they would be willing to join the fight in that, whether they would be willing to help us get 41 signatures on a letter committing to do one of those things. Did they offer that tonight? No. They just continue to pay lip service to the notion that this is Joe Biden's and Lloyd Austin's fault and Chuck Schumer's fault, but all the time they are pointing the finger to Tommy Tuberville. That is not fair. We owe him better than that. We who campaign on the banner of pro-life owe Tommy Tuberville more than that. We owe the unborn of this country more than that. We can do better. But to do better, we have to actually act.

I am glad that one man in this body is willing to stand up for the unborn, and it is an honor and privilege for me to stand with him.

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