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This scenario has played out before in other states.
Governors, asserting their authority of the commanders of their state’s National Guard, have tried in the past to overrule federal court decisions, Defense Department policies, and even stop their Guard’s troops from training overseas. Their success has varied, with the federal government most frequently prevailing in legal battles with the states.
The current standoff in Oklahoma over mandatory COVID-19 vaccinations for its more than 8,800 soldiers and airmen — which appears to have settled at an impasse between Gov. Kevin Stitt and the Pentagon — may be different, though.
Where the issue stands
The dispute erupted onto the national stage last week when Stitt relieved his state’s top commander, and the new adjutant general issued an memo declaring that “no Oklahoma Guardsman will be required to take the COVID-19 Vaccine” while in a state-controlled status.
The core issue at contention stems from the National Guard’s unique status as a state-controlled militia with federally-set requirements and federal funding.
That federal control extends to medical readiness requirements, including vaccinations, explained National Guard Association of the U.S. president and retired Brig. Gen. Roy Robinson in a phone interview with Army Times.
But under Title 32 of the U.S. Code, the status in which most Guard activities like drill and annual training are conducted, command authority for each National Guard rests at the state with its adjutant general and governor.
That means that disciplinary authority and administrative actions — to include enforcement of medical readiness requirements — falls to the states, Robinson argued. That changes when the Defense Department mobilizes the forces under Title 10, which is how Guard units are deployed overseas.
As a result, the Oklahoma National Guard and Pentagon don’t agree on whether the mandate can be enforced in a Title 32 status.
Oklahoma is merely exercising that state control, said Carly Atchison, Stitt’s press secretary.
And on Stitt’s order, the state’s top general declared that there would be no negative administrative consequences for vaccine refusal, because the officials who would implement Army guidance on the issue — such as flagging vaccine refusers, barring their reenlistment and issuing reprimands ahead of their eventual involuntary separation — are full-time Oklahoma Guard troops under Title 32 authority.
“As the Commander-in-Chief of the Oklahoma National Guard, [Stitt] has the authority to issue the order and protect their right to choose whether or not they receive the vaccine,” said Atchison.
The Pentagon’s top spokesperson, John Kirby, pushed back on that assertion in a statement emailed to Army Times.
“Failure to receive the vaccine may jeopardize an individual member’s status in the National Guard; any impact to a member’s status in their state militia is an issue for state authorities,” said Kirby. “The Governors may not relieve individual members of the Guard from their obligation to comply with this valid medical readiness requirement established by the Department.”
Kirby’s statement draws a distinction between individual troops’ dual statuses as a members of two legally distinct organizations: the federally-recognized National Guard of the U.S. and their organized state militia. That leaves open the question of whether the Pentagon will pull drill and training funding for troops not in compliance with the mandate.
A defense official who requested anonymity to speak more candidly about the potential consequences of Oklahoma’s decision confirmed that “if members fail to maintain medical readiness, it could jeopardize their status in the National Guard, and that could include the ability to participate in Title 32 drill activities. The National Guard Bureau and the relevant services will be making this clear through their channels, as is appropriate and as they do with their reserves and active duty forces.”
Could the Pentagon mobilize the Oklahoma National Guard?
Kirby and the defense official’s distinction between troops’ simultaneous state militia membership and National Guard membership carries echoes of a previous battle over governors’ control of their National Guards.
That simultaneous membership policy was highlighted by the Supreme Court in 1990 when it decided Perpich v. Department of Defense.
Then-Minnesota Gov. Rudy Perpich had attempted to intervene and prevent Guardsmen from his state from going to Central America for training, because he and several other Democratic governors did not agree with the Reagan administration’s policies in the region. The Supreme Court ultimately held that federal authority prevails when it comes to activations, notwithstanding Guard troops’ membership in their organized state militias.
It’s possible for the Pentagon to resolve the current standoff with Oklahoma in a similar manner by mobilizing members of the Oklahoma National Guard in a Title 10 status without Stitt’s consent. This mobilization could be as large or as small as the Pentagon directs, as the 12302 mobilization authority allows for up to 1,000,000 Guardsmen and other reservists to be called up.
That’s what then-President Dwight Eisenhower did in 1957 when the governor of Arkansas was using his National Guard to block Black students from racially integrating Central High School in Little Rock. Eisenhower federalized the entire Arkansas National Guard and sent federal troops to enforce the Supreme Court’s decision mandating integration.
While the situation in Oklahoma isn’t exactly analogous, the current declaration of a national emergency for COVID-19 allows Defense Secretary Lloyd Austin and the service secretaries to involuntarily activate the National Guard under federal control via section 12302 mobilization authority. Mobilizing Oklahoma’s National Guard, or at least the unvaccinated members and top leadership, would immediately remove Stitt from their chain of command.
And according to audio obtained by the Washington Post, Oklahoma’s top officer Brig. Gen. Thomas Mancino, told his troops that if he were mobilized under federal authority, he would carry out the Pentagon’s mandatory vaccine order.
“Does that make me two-faced? Does that make me evil? No,” Mancino reportedly said. “It makes me a professional military officer. I don’t have political opinions. I execute orders.”
Atchison, Stitt’s spokesperson, said that the governor “understands that if the Guard is federalized, then the vaccine mandate applies.”
Robinson, the NGAUS president, said such a mobilization “would resolve [the vaccine debate] pretty quickly.”
“All of the [adjutants general] are taking action based on the lawful order of their commander-in-chief at any given time,” said Robinson. “When that commander-in-chief changes [after mobilization], and the lawful order comes from the Title 10 side, then they’re going to implement that guidance and those instructions.”
Anthony Kuhn, who chairs the military law practice at Tully Rinckey, told Army Times that while such a mobilization would be legal, it might have political consequences for the Biden administration. Kuhn’s firm is representing hundreds of troops who are trying to obtain various exemptions from the vaccine.
The anonymous defense official said that they “will not speculate” on what Austin or other service secretaries might do when asked about the potential for a 12302 mobilization under Title 10.
A potential compromise?
It’s not certain whether the Pentagon’s current path will resolve the situation, though, and some observers are calling on senior defense officials to open a dialogue with Oklahoma about a potential compromise that allows Mancino’s order to stand.
It’s not clear whether the federal government will have much appetite for compromise, though, because the Pentagon may be reticent to pay for drill, training, healthcare and, if the standoff drags on long enough, retirement benefits for servicemembers who aren’t medically deployable due to their vaccine refusal.
But due to conflicts between federal and state authority, compromise was the temporary solution in 2013 when several states refused to follow a Pentagon order to process military identification cards and benefits for same-sex marriages.
At least nine states, including Oklahoma, refused to process ID cards recognizing same-sex marriages because they conflicted with state laws or constitutional requirements that banned gay marriage or otherwise defined marriage as being between a man and a woman.
That standoff continued for months while Defense Secretary Chuck Hagel and National Guard Bureau officials negotiated with state officials to determine a way forward.
The uneasy compromise that resulted made it so that National Guard facilities owned by the federal government would process the ID cards, but state-owned and operated facilities did not. Some states even switched some ID facility technicians from state employment to federal employment in order to avoid violating state law, though South Carolina refused to budge. The restrictions were rendered moot by the 2015 Supreme Court decision striking down gay marriage bans.
Kirby, the Pentagon spokesperson, argued that the vaccine mandate is different because it does not place “any individual member in conflict with state authorities.”
Even if a compromise doesn’t result, NGAUS president Robinson said, Austin “ought to pick up the phone and call the governor and have a conversation.”
“Let’s figure out a place where we can get to that is compliant with both Title 10 and Title 32 authorities,” suggested the retired general. “And if it gets to the point where mobilization is required, then everybody understands that’s an option.”