Texas governor takes feds to court over National Guard vaccine mandate

TYLER, Texas (CN) — Texas Governor Greg Abbott sued President Joe Biden and U.S. military officials Tuesday to stop them from imposing a Covid-19 vaccine mandate on members of the Texas National Guard.

The Republican governor claims the lawsuit is not about being for or against the vaccine, but rather about protecting Texas’ sovereignty against federal overreach.

To keep states’ Air National Guard and Army National Guard troops ready for activation into federal service for deployment during wars or national emergencies, the Department of Defense funds the bulk of their budgets.

According to Abbott, under Title 32 of the U.S. Code he is the sole commander-in-chief of the roughly 20,000 members of the Texas National Guard until they are ordered to active federal duty by the president pursuant to Title 10.

Defense Secretary Lloyd Austin issued a memo on Aug. 24 directing commanders of all the U.S. military branches to immediately begin full vaccination of all members of the Armed Forces, including the National Guard, who are not already fully vaccinated against Covid-19.

He followed up with another memo Nov. 30 ordering the secretaries of the Army and Air Force to issue Covid vaccination deadlines for non-federalized National Guard—those who have not been activated for federal service—and said they had to comply if they wanted to continue participating in drills and training and that the Defense Department would withhold funding for payment of duties of unvaccinated guardsmen and women.

The Texas Air National Guard set a Dec. 2, 2021, deadline, while the Texas Army National Guard’s deadline is June 30, 2022, according to a Texas National Guard spokesperson.

“To date, there are about 90% of airmen and 50% of soldiers vaccinated with others pending disposition of exemption requests,” the spokesperson said in an email.

Army and Air Force officials have also threatened that National Guard troops who refuse the vaccine, and who are not otherwise exempt from it, could be discharged, Abbott claims in his lawsuit.

In October, the governor ordered Major General Tracy Norris, adjutant general of the Texas Military Department, not to punish any guardsman for choosing not to get a Covid-19 vaccine.

“Although my order has been in effect for months now, President Biden has muddied the waters with a vaccine mandate from the U.S. Department of Defense. To clear up any confusion, this letter addresses all Texas guardsmen who are serving in a Title 32 status or a state active-duty status,” Abbott wrote Tuesday in an open letter to Norris.

He continued, “Unless President Biden federalizes the Texas National Guard in accordance with Title 10 of the U.S. Code, he is not your commander-in-chief under our federal or state Constitutions. And as long as I am your commander-in-chief, I will not tolerate efforts to compel receipt of a COVID-19 vaccine.”

Abbott seeks a declaration the National Guard vaccine directive and its enforcement against non-federalized Texas National Guard troops violates the U.S. Constitution and federal law, namely the 10^th Amendment, which reserves powers not delegated to the federal government in the constitution to the states, as well as “militia clauses” in the constitution that govern the federal government’s power over the militia, now called the National Guard.

Texas is not the only red state to challenge the National Guard vaccine order.

A federal judge on Dec. 28 denied a request by Oklahoma Governor Kevin Stitt and 16 anonymous Oklahoma National Guard members for an injunction against the mandate.

Noting that military members are already required to take nine other vaccines, U.S. District Judge Stephen Friot wrote that the Covid vaccines are “intended to protect service members from the virus which has, in less than two years, killed more Americans than have been killed in action in all of the wars the United States has ever fought.”

“The court is required to decide the case on the basis of federal law, not common sense. But, either way, the result would be the same,” added Friot, a George W. Bush appointee.

Abbott’s lawsuit adds to a growing pile of challenges the Lone Star State has made to federal Covid-19 vaccine mandates.

Texas Attorney General Ken Paxton, a Republican, has also sued the Biden administration over its vaccine mandates for employees of large businesses and federal contractors, and health care workers employed by hospitals that receive Medicare and Medicaid funding.

On New Year’s Eve Day, a federal judge in Lubbock granted Texas a preliminary injunction against the federal government’s requirement for all staff and volunteers in Head Start, an early childhood education program, to get Covid vaccines by Jan. 31.

Follow @cam_langford

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