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The short answer is yes: The President of the United States can order members of the military to take the COVID-19 vaccine. Don’t be fooled otherwise by secondhand information and basic Google searches. Many service members have been misguided by what military people refer to as “barrack lawyers”, who claim to have the specialized experience or knowledge on an area of the law after hearing some gossip, rumors, or speculation. This isn’t to say that there are not certain actions you could take to avoid receiving the vaccine, but those are only in fringe circumstances that you must advocate for on your own accord. So regardless of what others may have stated or claimed the legality of, the President can order military members to take the COVID-19 vaccine and the refusal to comply could result in your military career being jeopardized.
This isn’t the first time the conversation of mandatory vaccination in the military has come up. Around the turn of the century until 2004, members of the military were required to take the Anthrax vaccine, which was heavily disliked. The Courts eventually ruled that members of the military could not be compelled to take the vaccine due to issues with the Food and Drug Administration (FDA) approval process, which was found to have violated provisions of federal law concerning the overall safety and development protocols of the vaccine; however, the court noted troops could not be compelled by the FDA and were not be required to take the vaccine per court order “unless the president orders them to do so.”[i]
This was surprising to many since the Federal Courts are highly reluctant to get involved in military affairs concerning a presidential directive to members of the armed forces.[ii] The Supreme Court of the United States has used the “political question” doctrine to generally stay out of Article II affairs involving the military and military affairs, with only a few exceptions relatively inapplicable to mandating vaccinations. Article II of the United States constitution covers the responsibilities and obligations of the President of the United States and vests the President as sole “Commander in Chief” with extremely wide latitude and discretion. With the courts unwilling to overturn a presidential directive in his exclusive constitutional authority as sole Commander in Chief; the legality of such a directive is relatively straightforward. This is not to say such an order will be well received politically, but from a technical legal point of view such a mandate would be entirely lawful and enforceable.
So, if President Biden does order members of the military to take the vaccine, the failure to comply would be treated as a criminal act and could result in prosecution, confinement, and premature separation from the military in the form of a dishonorable discharge. For Officers, they could also face liability for a violation of article 133; the catch all provision banning any behavior deemed “conduct unbecoming an officer and gentleman.” This is the worst-case scenario for anyone on active duty with the military for a “failure to follow a lawful order” type prosecution.
As of May 2021, a large percentage of the uniformed military remains unvaccinated.[iii] Many have come to believe the nature of the vaccine’s “emergency use authorization” and the relative rush to the market make taking the vaccine too risky for their individual liking. This is an understandable and rational concern; however, when a member joins the military they sign a contract with a provision that fundamentally states that the military can do “what is in the best interests of the service” at any given time. This means the military leaders can lawfully order you into situations where there might be an extreme risk to your health and safety. So whether it be a ordering you into a perilous battle or requiring you to receive certain vaccinations, they have the authority to do so without legal repercussion in most cases.
As mentioned previously, there are certain exceptions and processes you can go through to abstain from receiving a vaccine without damaging your career. Individuals who have a good faith religious justification for refusing to take the vaccine may be able to request a religious exemption. There are also certain medical exemptions you could pursue if you do not wish to receive the vaccine. Knowing the different exemptions—example being temporary and permanent— and what documentation you need to present to qualify is of utmost importance.
However, it appears with COVID-19 numbers dropping drastically in various jurisdictions that have fully reopened such as Florida and Texas, and with vaccination rates approaching 60% of the adult population across the United States, it may not be necessary for the President to take the extraordinary step of ordering full compliance of everyone in uniform. Individuals who are looking to exercise their right to receive an exemption for vaccination should be fully versed in what rules and timelines they must follow, should a vaccine be required, in order to protect not only their health, but their career as well.
Sean C. Timmons, Esq. is the Managing Partner of Tully Rinckey PLLC’s Houston office. Mr. Timmons is an experienced military law attorney, having spent several years serving the United States Army Judge Advocate General’s (JAG) Corps.
[i] See https://www.cidrap.umn.edu/news-perspective/2004/10/court-ruling-again-stops-anthrax-shots-us-soldiers; President Bush never specifically ordered US troops to take the anthrax vaccine after significant backlash in the election year 2004; however the courts recognized he had the authority to do so as commander in Chief.
[ii] Jonathan Turley, Pax Militaris: The Feres Doctrine and the Retention of Sovereign Immunity in the Military System of Governance, 71 GEO. WASH. L. REV. 1 (2003)