For many U.S. military officers selected for promotion, 2023 is turning out to be the summer of discontent. With no shortage of threats facing the nation, a military promotion blockade in the Senate has emerged as a full-blown national security crisis. Senator Tommy Tuberville (R-AL) is exercising his authority under Senate rules to halt the promotion of 270 senior military promotions. This number is poised to explode to 650 by the year’s end. With just 852 general and flag officers in the U.S. military, 76% of the nation’s most senior officers are on pace to not be Senate-confirmed by the end of the year. Why the delay? Tuberville disagrees with the Pentagon’s reproductive health care access policy that was issued following the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision.
As retired NATO commander Admiral James Stavridis lamented, this is “immensely distracting to national security.” The Pentagon is already suffering from a historic recruiting and retention crisis due to myriad factors largely outside the federal government’s control. Tuberville’s actions amount to a self-inflicted wound that will do nothing to alleviate those challenges. Injecting a partisan social issue into senior military promotions is inconsistent with civil-military norms, runs contrary to historic practice, and harms military families. It also undermines due process and basic principles of fairness owed to service members and their families who have selflessly served the nation for decades.
To be clear, the Senate has an important role in the officer promotion process. The Constitution’s Appointments Clause makes clear that the President nominates “officers of the United States,” but this nomination is subject to the Advice and Consent of the Senate. And Congress has an important role in ensuring civilian control of the military more generally. As I have argued before, this is a role that should be reinvigorated, particularly in the war powers context.
For officers serving in “positions of importance and responsibility” these promotions and Senate confirmation are inextricably linked to the position in which they are appointed. Under current law, officers serving in the rank of three and four stars hold that paygrade only while serving in these positions of importance and responsibility. Failure to be quickly promoted to another Senate confirmed position after being relieved could jeopardize the officers’ paygrade and career, adding considerable stress and anxiety.
What’s more, non-Senate-confirmed officers can hold these positions, but only in an Acting capacity. Acting officers do have legal authority to make changes, but are unlikely to take bold initiatives. As the DOJ wrote in 1982, an Acting officer’s “stature as a practical matter is . . . somewhat inferior. He is frequently considered merely a caretaker without a mandate to take far reaching measures.”
Outside Civil-Military Norms
What is driving this Pentagon upheaval? Tuberville objects to the Pentagon’s policy on access to reproductive health care. Signed in October 2022, Secretary of Defense Lloyd Austin’s memo directs DOD to take the following actions:
Establish travel and transportation allowances for Service members and their dependents, as appropriate and consistent with applicable federal law and operational requirements, and as necessary amend any applicable travel regulations, to facilitate official travel to access noncovered reproductive health care that is unavailable within the local area of a Service member’s permanent duty station. (emphasis added)
Consistent with longstanding federal travel regulations, the policy allows military service members and their dependents to travel outside their permanent duty station (PDS) for reproductive health care that is not available locally. The issue of reproductive health access is particularly important for troops and their families serving in one of the growing number of states that have outlawed abortions and related access to reproductive health care. Since the Dobbs decision, two out of the three states with the largest military bases (Fort Cavazos in Texas and Fort Campbell in Kentucky) have banned abortion.
Tuberville argues that the Pentagon policy violates the Hyde Amendment, a 1977 legislative amendment that limits federal abortion funding. The Hyde Amendment states that DOD and other federal agencies can use funds to perform abortions only in limited circumstances, such as when the life of a mother is at risk or in cases of rape or incest. It expressly prohibits military medical facilities from performing such operations.
But what about funding to travel to health facilities—does the new DOD policy violate the Hyde Amendment, as some have argued? The Office of Legal Counsel (OLC) says no. The OLC wrote in October 2022 that “the DoD may lawfully expend funds to pay for service members and their dependents to travel to obtain abortions that DoD cannot itself perform due to statutory restrictions.”
Not surprisingly, Tuberville disagrees with the OLC opinion, but he has not exercised his legislative authority to change Austin’s policy. Indeed, there have been 862 Senate-sponsored amendments to the 2024 defense spending bill, but Tuberville has not introduced a single one. Nor has he asked the Government Accountability Office (GAO) to issue a separate opinion on the fiscal law issues surrounding the Austin memo. The GAO has shown a willingness to do this in other contentious national security issues. For example, in 2014 the GAO opined that DOD violated the Anti-Deficiency Act when it expended federal funds to transfer individuals detained at Guantanamo Bay.
Couldn’t the Senate vote on each nominee individually, as Tuberville suggested? That’s not impossible, but this would likely tie up the Senate for months based on existing Senate rules and the legislative calendar.
One can agree or disagree with the wisdom of the post-Dobbs travel and leave policy or even critique the underlying OLC opinion. But halting promotions to make a point about a contentious social issue is far outside the bounds of civil-military relations. Never before in American history has one person held up so many senior promotions for so long. It leaves, by one estimate, the Department of Defense with more “temporary occupants than at any point in its history.”
Harming Military Families
It is difficult to overstate the debilitating impacts Tuberville’s promotion blockade has on officer morale, military readiness, and family security. Indeed, this has ripple effects for personnel awaiting follow-on assignments. Everything comes to a standstill. Military families suffer the most. When and where will they be able to move? Can they enroll their children in school? Should they buy or rent a new home? Should a spouse look for or start a new job?
In an exhaustive study, the Army found that the effects of Army life on families and their spouses were the most important reasons why people left the military. Tuberville’s actions exacerbate these underlying realities. Military service is hard enough on families without the anxiety and uncertainty that these delays inflict on officers and their families—a point reinforced by seven former Secretaries of Defense and by Army War College Professor Carrie Lee.
Immediate National Security Impacts: Personnel as Policy
Having the best qualified people in leadership positions is absolutely essential for warfighting and meeting the enormous national security challenges facing the nation. Particularly at the highest levels, personnel is policy—outstanding personnel choices equate to sound national security decision-making. These senatorial hijinks could not come at a worse time for the U.S. military—the Ukraine counteroffensive is stalled, China continues with illegal annexations in the Indo-Pacific, and the Persian Gulf has witnessed an uptick in Iranian aggression. What’s more, the highest military officer—the Chairman of the Joint Chiefs of Staff—is slated for turnover this summer. This promotion logjam is poised to be a highway pileup with the nominations of the heads of the Army, Navy, and Air Force scheduled to come before the Senate in the coming months. It also blocks the historic promotion of Admiral Lisa Franchetti to head the U.S. Navy. She is on the cusp of being the first female Chief of Naval Operations in the Navy’s nearly 250-year history.
The personnel collateral damage has already impacted the U.S. Marine Corps, which is without a Senate-approved Commandant for the first time in 100 years. General David Berger recently retired as the Commandant of the Marine Corps in a “relinquishment of office” ceremony – not a change of office where the office’s full responsibilities and authorities are handed to a new Commandant. Practically, Senate confirmation provides job security and freedom to issue strategic guidance without the fear of ruffling any one Senator’s feathers. For example, is the current Acting Commandant of the Marine Corps, General Eric Smith, going to follow his predecessor’s lead and issue bold strategic guidance prior to confirmation? This is exceedingly unlikely.
Undermining Due Process and Contrary to DOD Guidance
Outside the Senate Rules, the existing Pentagon instruction provides meticulous detail and guidance on when an officer’s promotion can be “removed” from promotion officer lists, “withheld” from nomination, or “delayed” from final appointment and promotion. While this does not bind the Senate, it highlights the stakes behind any promotion delay and broad principles of fairness and due process owed to each service member. Critically, the Pentagon recognizes that taking any promotion action must be tied to outstanding questions concerning underlying officer conduct. For example, an officer’s promotion can be delayed if the officer is facing criminal charges, or if “there is cause to believe the officer is mentally, physically, morally, or professionally unqualified to perform the duties of the grade to which they have been selected.”
DOD personnel laws provide sound due process rights of notice and comment and require each service to establish “fair and equitable procedures” to protect the rights of the affected officer. For example, if an officer’s promotion is delayed, they must be provided with written notice of the underlying cause of the delay and given a reasonable opportunity to submit a written statement. The existing personnel promotion system features an impressive underlying fairness and seeks to balance due process rights of the affected officer with ensuring the best qualified officer is promoted. It is fair, equitable, transparent, and conscious of the human dimension behind each promotion.
To be sure, there have been instances when the Senate has held up multiple promotions—this occurred in the early 1990s during the Tailhook scandal and, most recently, during the Glenn Defense Marine Asia (GDMA) scandal. These promotion actions, however, related to questions of the officers’ underlying conduct, not a larger social issue over which the officer has no control.
Under Tuberville’s application of the Senate Rules, there is simply no due process provided to affected officers, whose careers are on hold, perhaps forever.
Harming Military Retention—Particularly for Women Service Members
Secretary Austin has made clear that restrictions on reproductive health will interfere with the military’s “ability to recruit, retain, and maintain the readiness of a highly qualified force.” The United States already has a recruitment crisis in the military; just 23% of 17-24 year-olds are qualified for military service. The All-Volunteer Force (AVF) has served the nation well, but make no mistake: the military is in competition to retain top talent. This partisan brinkmanship may be the final straw for top junior officers to stay in uniform—a point recently made by Air Force General C.Q. Brown. He stated that Tuberville’s action reflects a growing politicization of the military that will cause the military to “lose talent.” This is particularly pronounced for female service members who are already 28 percent more likely to leave military service than men.
In sum, the lives and careers of military officers are not a bargaining chip to achieve a desired social outcome. Tuberville’s dangerous ploy harms civil-military relations, undermines military readiness, and damages military retention. He should withdraw his halt on promotions and allow these talented military officers—and their families—to continue on with their careers and their lives.
Editor’s note: A previous version of this piece misstated the date the DOD policy was signed.