Showdown: The Battle Between Governor Abbott and President Biden Over Vaccine Mandates in the Texas Army National Guard
The COVID-19 pandemic has seriously transformed the political, social, and economic landscape for various countries throughout the world, most importantly and starkly the United States. The U.S. has forever been changed by this pandemic, in more ways than one while also wracking havoc with the nation’s national defense and national security apparatuses.
In 2021, due to the rising anti-vaccination sentiment within the U.S. Armed Forces, the Department of Defense (DoD) began removing soldiers who refused vaccinations with the U.S. Army having “reprimanded more than 2,700 soldiers” and begun discharge proceedings this month. The U.S. Air Force and U.S. Marine Corps have acted similarly, removing 27 Airmen and “over 100 US Marines”.
Many Conservatives, both members of the public and publicly elected officials, voiced their frustrations in letters to President Biden and the Pentagon and backed military personnel who sued “the Pentagon and Navy over the military’s coronavirus vaccine mandate”.
When the process to begin these discharges from service began gaining traction within the DoD during November and December, multiple Governors (starting with Governor Kevin Stitt of Oklahoma and followed by the Republican Governors of Wyoming, Alaska, Iowa, Mississippi, and Nebraska) argued their state’s guardsmen were exempt from the mandates arguing on 16 December, “the Defense Department can’t enforce the order while troops are under Title 32 of the U.S. Code, which says they are under their governor’s control unless the president mobilizes them”. Governor Stitt, following this letter, then filed a lawsuit against the DoD, trying to halt the vaccine mandate.
During this, Defense Secretary Lloyd Austin had stated that “any Guardsman who refuses to abide by the deadline for vaccination set by each military service will not receive pay for any duties while under federal jurisdiction – which includes monthly formations and training – and will not accrue benefits, including time counted toward retirement, for missing any of these activities”.
Clearly, from one political perspective, there was an intense and heated resistance to these vaccine mandates within the military. However, while the discharges have already begun occurring, this has not stopped many elected officials from further working against the federal government on this topic.
When other state’s Chief Executives began making known their arguments against the military’s vaccine mandates, another, more powerful Governor joined the fray. On 16 December, Governor Greg Abbott of the State of Texas sent a letter to Secretary Austin arguing that the National Guardsmen under his command would abide by his Executive Order GA-39 which holds that “[n]o governmental entity can compel any individual to receive a COVID-19 vaccine” while singling out the Texas State Guard (TSG) and the Texas Army National Guard (TARNG).
In his letter, Abbott further stressed that the “commander of the Texas National Guard -- under the governor's executive order -- "will not punish any guardsmen" for not getting vaccinated, adding that it was "unconscionable" that the military would threaten to withhold federal dollars for unvaccinated members of the guard or discharge service members from the unit”.
On 04 January of 2022, in spite of the massive legal and political trials, Abbott sent a letter to Major General Tracy Norris, the Adjutant General of the Texas Army National Guard. The Governor wrote:
“As the commander-in-chief of Texas’s militia, I have issued a straightforward order to every member of the Texas National Guard within my chain of command: Do not punish any guardsman for choosing not to receive a COVID-19 vaccine...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.”
In coordination with this letter, Ken Paxton, the Attorney General for the State of Texas, filed a lawsuit against President Biden, Secretary Austin, Secretary of the Air Force Frank Kendall III, Secretary of the Army Christine Wormuth, and the respective departments of the U.S. Armed Forces on Governor Abbott’s behalf. The Governor and Attorney General wrote:
“Defendants unilaterally severed the division between state and federal authority over the Army National Guard and Air National Guard by attempting to impose a mandatory COVID-19 vaccine policy (“Military Vaccine Mandate”) on Guardsmen under state control, and in violation of Texas state law. Rather than exercise their own authority and lawfully activate the President’s chain of command, Defendants have attempted to force state officers to do the work for them, in violation of both the U.S. Constitution and federal laws... this case seeks protection from the federal government’s unconstitutional action to force Texas, through its Governor, to submit to federal orders and impose federally dictated disciplinary action on its National Guardsmen.”
According to the lawsuit, “more than 220 members of the Texas Air National Guard and about 40% of the members of the Texas Army National Guard are refusing to get vaccinated -- for religious reasons or otherwise”.
This lawsuit made national headlines and prompted responses from politicians in the State of Texas, with Democratic and Republican challengers to the Governor’s seat criticizing Abbott’s legal actions on social media. Statements of both support and criticism came from local and state politicians and from the public on social media.
This entire case, starting with the initial letter and lawsuit by Governor Stitt of Oklahoma, has already been much discussed within the U.S. legal system. The lawsuit brought by the Governor was quickly dismissed on 28 December, with the judge stating the claims were “without merit” and “[the] court is required to decide this case on the basis of federal law, not common sense…either way, the result would be the same”. This case is sure to generate an intense legal discussion within the Texas courts, yet, will transcend purely the issue of vaccine mandates.
The Hill, interviewing lawyer Sean Timmons with Tully Rinckey LLC in Houston, details how this case will have immense ramifications. Timmons states, “I don’t believe there has ever been this level of conflict between Guard units and the federal government in our history… Governors generally throughout the history of our country have had a lot of discretion who they allow in their ranks… So, the governors, cleverly, here [are] trying to say, 'Oh, we're just going to waive the requirement for vaccines because we don't believe that should be something that they should have abide by,'”. This case will surely change the relationship between the National Guard and the federal government, forever altering how they operate in times of peace and war and defining what exactly powers the Governor has over them.
This showdown between the Executive branch and the State of Texas, however, has rather important national security implications. While the Governor is correct that, the vast majority “of the time, state National Guards are activated and commanded by the governors of their respective states or territories” the President does have the ability to federalize these units. Under Title 10, Section 12406 of U.S. Code, in certain times of foreign invasion, domestic insurrection, or when regular U.S. Armed Forces are unable “to execute the laws of the United States… the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws”.
Under normal circumstances, though, the President would ask for “the consent of the Governor” before federalizing a state’s national guard forces. If the President were to federalize the Texas Army National Guard, then the National Guardsmen who are not vaccinated would need to be vaccinated given they have been federalized and are now under complete DoD authority. While the Governor’s executive order would still stand,
If the TARNG were to become federalized and vaccinations were required, then this would stall whatever operation the United States would be embarking upon. Vaccinations could not be forced, so if soldiers refused, they would need to be discharged from the service which would take time. If the operation in question were to be in response to a natural disaster or a military conflict, wasting time over such the vaccine mandate could cost the lives of foreign persons, Western allies, or U.S. personnel themselves.
The decision by Governor Abbott is one that puts the TARNG at risk of being combat ineffective, and, in the event of war (which seems more possible now given the situation in Ukraine), would result in the United States and Western nations being at a disadvantage. While other National Guard units could be called upon to serve and possibly reinforce those units in need, this again would take additional time that may not be in abundance and potentially weaken any strategy against the enemy.
Allowing soldiers to not be vaccinated against the COVID-19 vaccine is a poor mistake; not only does it erode the confidence one has in the National Guard and further make them susceptible to virus and disease, weakening their abilities to respond during a state crisis, it degrades the power of the U.S. Army as a whole and makes for a weak national security state.
Alan Cunningham is a graduate of both Norwich University and the University of Texas at Austin. He works as a financial analyst for Ernst & Young and as a journalist for the human rights organization Truth Be Told. He plans to join the U.S. Navy as a Commissioned Officer in 2022 and gain a PhD in History and a JD in the near future.
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