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Pentagon Says It Can Overrule Oklahoma Guard on Vaccinations

November 16, 2021

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The Pentagon weighed in Monday on Oklahoma’s decision to defy a mandate that National Guard troops get COVID-19 vaccinations, saying Defense Secretary Lloyd Austin has the final authority despite the state’s announcement.

The new Oklahoma National Guard adjutant general, Brig. Gen. Thomas Mancino, issued a memo last week notifying troops they would not be required to take the COVID vaccine after he was appointed by Gov. Kevin Stitt, a Republican who earlier requested Austin to give his state a reprieve from the vaccine mandate.

Austin’s vaccine mandate constitutes a lawful military order, and the secretary can enforce it even when Guard members are under the authority of the Oklahoma governor, or what’s called Title 32 status, Pentagon spokesman John Kirby said Monday.

“The secretary of defense has the authority to order these vaccines for all members of the force, including the National Guard,” Kirby said. “Because when they are called up for their monthly training, they are still federally funded, so he still has those authorities.”

But it remained unclear how the dispute might play out — and whether the Pentagon has the clear legal authority that it claims to force vaccinations.

Stitt wrote in a Nov. 2 letter to Austin that “this mandate violates the personal freedoms of many Oklahomans, as it asks them to potentially sacrifice their personal beliefs in order to not lose their jobs.”

Stitt said roughly 10% of the state’s Army and Air Guard expressed that they did not want to be inoculated, which he told Austin could limit how many troops can serve. Neither Stitt nor Mancino voiced any issues with more than a dozen other vaccines mandated for Guardsmen.

Austin ordered in August that all active-duty, Guard and Reserve troops be vaccinated against the coronavirus, and the vast majority of service members have adhered to that order, Kirby said Monday.

Guardsmen must be vaccinated by June 2022, or Dec. 15 if they are going to deploy, according to the secretary’s order.

But the Pentagon’s options might be limited when it comes to enforcing the mandate on the state of Oklahoma if it continues to resist, said Anthony Kuhn, a managing partner at the Tully Rinckey law firm based in Washington, D.C.

“The state force is specifically a state force; they don’t necessarily work for the federal government,” Kuhn said.

The Pentagon and Biden administration have two unlikely options, he said. They could cut off federal funding to the Oklahoma Guard to pressure the state to adhere, or activate the state troops on federal orders to vaccinate them.

If Oklahoma troops were federally activated, it would require at least a monthlong set of orders that would cost millions of dollars and possibly be a political nightmare for the Biden administration, Kuhn said. It was unclear whether Mancino could be fired outright, given his appointment by the governor.

“They’re going to be looking for ways to put pressure on the state,” Kuhn said. “I don’t think the federal government has any control over the adjutant general.”

In most cases short of a deployment, states have control of Guard forces, but still largely have to follow Defense Department standards. A public clash between a state and the Pentagon, especially over medical care of its troops, is rare.

Oklahoma’s defiance of the mandate came after Stitt fired Adjutant General Michael Thompson, putting Mancino in his place to command the state’s 8,500 soldiers and airmen. Thompson was a vocal advocate of vaccine mandates, according to reporting from The Oklahoman.

Stitt, like many Republican governors and lawmakers, has lashed out against the COVID-19 vaccines, calling vaccine mandates unconstitutional, according to reporting from Fox 25.

The move also follows a string of seemingly political decisions Republican governors have made with the Guard. Earlier this year, South Dakota funded a border mission for some of its troops with money from a GOP megadonor, and Texas has a swelling deployment of troops to the southern border with Mexico, far outpacing the federal mission and without disclosing the volume of troops deployed.

When Military.com pressed Gen. Daniel Hokanson, the chief of the National Guard Bureau, on Wednesday during a press conference on whether he was concerned about partisan wielding of the Guard, he said he has not seen evidence of that, but that governors are ultimately accountable for their decisions with their troops.

“Ultimately, the Guard falls under command and control of the governor,” Hokanson said. “The governors have to answer to that; that’s how the National Guard is set up.”

The Oklahoma governor’s office has not yet heard from the Pentagon, Charlie Hannema, a spokesperson for Stitt, told Military.com.

Hannema said he would not speak to the specifics of what Mancino and Stitt discussed before the adjutant general appointment and whether reversing the vaccine mandate was a prerequisite for the job.

“Since [Brig. Gen.] Mancino was serving as assistant adjutant general, I believe it’s fair to say he was aware of the governor’s position,” Hannema said. “After he assumed command, Gov. Stitt directed Mancino to issue a policy memo to the Oklahoma National Guard to make sure the governor’s intent as commander-in-chief was being clearly communicated to our soldiers and airmen.”

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