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The Pentagon won its first battle over its vaccine mandate for the National Guard, but a broader fight over the mandate is raging as multiple states seek to exert their authority.
A federal judge in late December rejected a bid from Oklahoma Gov. Kevin Stitt (R) to preliminarily block the mandate. However, the state still has options, and Texas Gov. Greg AbbottGreg AbbottWe need to stop kowtowing to COVID-19 refuseniks Fight over vaccine mandate for National Guard rages How to hold unvaccinated Americans accountable MORE (R) is waging his own legal battle over the mandate a week after Oklahoma's loss.
States and the federal government have dual control over the National Guard. While governors typically call out the guard to help with emergencies and national disasters, the federal government can also activate it, though such circumstances are rare.
The dispute over the Pentagon’s mandate revolves around that question of authority over the National Guard, with courts now dragged into the middle of the fight. As it plays out, Army guard members have until late June to comply with the mandate or face consequences.
“I don’t believe there has ever been this level of conflict between Guard units and the federal government in our history,” said Sean Timmons, a Houston-based lawyer at the firm Tully Rinckey PLLC.
Arguing on behalf of state authority, Stitt and Abbott maintain they control the guard when it operates under Title 32 of the U.S. Code. But under Title 10, the president can mobilize the guard, which places them under federal authority.
"Governors generally throughout the history of our country have had a lot of discretion who they allow in their ranks," Timmons said, explaining the federal Army has been “complicit” in allowing governors to make exceptions to policies from the top.
"So, the governors, cleverly, here [are] trying to say, 'Oh, we're just going to waive the requirement for vaccines because we don't believe that should be something that they should have abide by,'" he said.
The Pentagon has largely stayed quiet about the lawsuits it faces over the vaccine mandate for the National Guard and other military services. But as it relates to the guard, officials have been clear that the mandate applies to troops regardless of duty status.
“It's not a question of when the soldiers are getting vaccinated, they're under a particular status,” said Victor Hansen, a professor of law at New England Law in Boston.
“The issue is because at some point in the future we may need you to be a Title 10 status, we may need you for a federal mission ... we have the authority now to require you to be trained to a certain level, to have certain levels of mission preparedness, including health and vaccination,” he continued.
The legal fight is just one chapter of a much wider political fight over the COVID-19 vaccine, which has been brewing over the past year as some Republican-controlled states fight vaccine mandates in the civilian world.
The political fight has been waged in other military services, notably on the issue of religious exemptions. Last week, a Texas federal judge blocked the Navy from taking “any adverse actions” against 35 Navy sailors who applied for religious exemptions against the mandate.
"I think what we see is there isn’t an exemption process for ... 'this goes against my political beliefs,'" said Katherine Kuzminski, director of the Military, Veterans and Society Program at the Center for a New American Security.
"It's a challenge because service members are — in a lot of ways — they are entering a career in which they are choosing to set aside their personal convictions about entering a dangerous situation in order for the greater good," she continued.
The political nature of the vaccine fight is something that Oklahoma federal Judge Stephen Friot alluded to when he denied the state’s motion for a preliminary injunction on the National Guard mandate.
In a ruling issued Dec. 28, Friot said that he concluded “quite readily” that the mandate is enforceable. He also pointed out that the state wasn’t opposed to the nine other vaccines that are mandatory for the military.
Air National Guard members had until the end of December to be vaccinated, but Army National Guard troops have until June 30 to be vaccinated.
Defense Secretary Lloyd AustinLloyd AustinFight over vaccine mandate for National Guard rages The Hill's Morning Report - Presented by Altria - Democrats eye same plays hoping for better results Overnight Defense & National Security — Sailors prevail in vaccine mandate challenge MORE has warned that unvaccinated National Guard and Reserve service members could face an array of consequences, including loss of pay and being marked absent from drills and training.
Asked about any plans to appeal the ruling, a spokesperson for Oklahoma Attorney General John O’Connor (R) said "we are still reviewing our options."
The legal fight could escalate in the coming months if Oklahoma appeals the ruling or as Texas begins its own dispute in court. However, some experts cast doubt on whether future legal challenges would be successful.
“Fundamentally, individuals can have objections and as we're seeing state governors can have objections,” Kuzminski said. “But at the end of the day, I think it's made clear that the secretary of Defense is the ultimate authority on these issues as opposed to the state leadership.”
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