Paradis & Eslinger: Federalism and Coronavirus Vaccination Mandates for Military Personnel

Federalism and Coronavirus Vaccination Mandates for Military Personnel

"Given the unique federalism issues governing the National Guard, however, the current showdown with Oklahoma raises two unique legal questions. First, does Governor Stitt have the legal power to exempt the Oklahoma National Guard from Defense Department vaccine mandates? Second, when push comes to shove, is there anything the Defense Department can do to enforce the mandate in the face of a state’s intransigence?

The answer to the first question is [NO]; and it is not even a close call. The National Guard is the modern umbrella term for the military entity that was  called the “militia” at the time of the nation’s founding. Tracing their origins to pre-Revolutionary England, militia comprised citizen soldiers, who by law were often required to keep arms in their homes, belong to a local group that more resembled a rotary club than an army, and were ready to be called up to bear arms in times of public need. This made militia members distinct from the full-time military professionals of the regular army. And they both operated and were understood to operate under local regulations dictated by local needs for which local politicians were accountable."

Michel Paradis & Emily Eslinger