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The state of Oklahoma has filed a lawsuit against the Biden administration to halt its COVID-19 vaccination requirement for the National Guard, Gov. Kevin Stitt’s office announced late Thursday.
The move is the latest in a face off between the Republican governor and the Pentagon, after Defense Secretary Lloyd Austin said pay for unvaccinated troops can be withheld.
Thursday was also the deadline for the Air National Guard to be fully inoculated against COVID-19. Roughly 11%, or 200 airmen in Oklahoma are not vaccinated, 16 of whom are unnamed plaintiffs in the suit. The Army National Guard has a June 2022 deadline. About 40% of the state’s 6,200 soldiers are inoculated.
“This week, Secretary of Defense Lloyd Austin declared his intention to proceed with unconstitutional punishment that individually targets Oklahoma National Guard soldiers and airmen, including withholding their pay,” Stitt said in a statement.
In a warning shot to Stitt, and other GOP governors, Austin warned in a memo Tuesday that despite what their states may tell them, Guardsmen still must comply with federal health standards, or their careers are over. Troops are also required to receive at least a dozen other vaccines.
“No credit or excused absence shall be afforded to members who do not participate in drills, training, or other duty due to failure to be fully vaccinated against covid-19,” Austin said.
Yet the Pentagon’s authority over the Guard while it is in a state status is murky at best. The National Guard is an oddity in the military that has dueling obligations to both the state and federal government.
Sean Timmons, Managing Partner with Tully Rinckey law firm based in Houston, said there is not much contemporary precedent of states challenging the federal government over National Guard policy, and that the boundaries for who has ultimate say has never been fully established. There also are not a lot of mechanisms for the Pentagon to enforce its rules on Guardsmen who aren’t on federal orders, he said.
“It ultimately needs to be decided by the Appellate Court or Supreme Court because it’s about sovereign authority,” Timmons told Military.com. “The commander in chief of the Guard is the governor, the Guard is an instrument of state power, I believe the court can claim [the mandate] unlawful. The Oklahoma [Attorney General] has a valid argument, that the federal order is infringing on the state’s power and a violation of the 10th Amendment.”
While the governor serves as commander in chief, Guardsmen are paid by the federal government and at any time they can be deployed under so-called Title 10 orders, meaning Guardsmen then fall under command of the president, a mechanism that is usually reserved for missions abroad.
“Therefore, unless mobilized by the President of the United States under U.S. Code Title 10, I retain the authority for all training and governance of the Oklahoma National Guard – including determining if and how training guidelines issued by the president will be implemented,” Stitt said in his press release.
Stitt’s showdown with the Pentagon is yet another move by Republican officials to challenge COVID-19 related mandates, including vaccines. Stitt’s office told Military.com at least five other Republican governors are considering similar moves to dismiss the vaccine mandate for their troops. A spokesperson for the Texas National Guard told Military.com they are reviewing the mandate.
The National Guard Bureau reported 54.4% of Army National Guard and 88.4% of Air National Guard troops had been fully vaccinated as of Nov. 22. The reported rates may be lower than the actual numbers, because units do not automatically track inoculations received from civilian sources. It is up to those Guardsmen to report their vaccination status to their units.