- The Washington Times - Monday, December 27, 2021

The Pentagon‘s battle against COVID-19 vaccine holdouts is headed for the courtroom.

While the big question centers on whether the U.S. military has overstepped its legal authority by ordering all service members to be vaccinated, the battle is expected to play out across several fronts over the coming weeks and months.

The Defense Department is facing multiple high-stakes legal fights rife with national security implications. This includes clashes with Republican governors who claim full control over National Guard forces and the Pentagon‘s hard line against troops seeking COVID-19 vaccine waivers on religious grounds.

The cases will encompass matters of federalism, First Amendment rights, and other key questions forming the backdrop for what has emerged over the past year as the most controversial military health initiative in U.S. history.

Active-duty coronavirus vaccination deadlines for each military service went by weeks ago. With thousands of service members still refusing immunization and seemingly willing to lose their careers over the matter, the Marine Corps, Army, Navy and Air Force are now faced with kicking out the unvaccinated.



Army Public Affairs has indicated the Pentagon will start removing unvaccinated soldiers “beginning in January.”

Powerful Republican lawmakers are throwing their legal weight behind troops who say they have deep religious or moral objections to the vaccine.

In mid-December, eight GOP senators and nearly 40 members of the House filed an amicus brief in federal court backing more than two dozen Navy SEALs who have lodged religious objections against Defense Secretary Lloyd Austin’s vaccine mandate.

The group of SEALs have a lawsuit pending against the Biden administration over the vaccine mandate in U.S. District Court for the Northern District of Texas.

The amicus brief signed by such prominent Republicans as Sens. Ted Cruz of Texas and Mike Lee of Utah asserts the SEALs, along with other military personnel, deserve the freedom to choose whether or not to be vaccinated.

“Our men and women in uniform have fought to protect the freedoms that every American, regardless of belief, enjoys,” the brief states. “Now they ask this court to protect their religious freedom from encroachment by the very government they have sworn to protect with their lives.”

The Pentagon has not approved any religious waivers relating to the vaccine, despite thousands of requests that have been lodged by forces across the services.

The most intriguing legal battle may stem from the Pentagon‘s clash with Republican governors over vaccine requirements for National Guard personnel.

Led by Oklahoma Gov. Kevin Stitt, at least a half-dozen GOP-led states argue that Guard forces remain under the state’s control until they’re called up for federal duty, asserting that the forces are not currently subject to Mr. Austin’s mandate.

Mr. Stitt and Oklahoma’s state attorney general filed a federal lawsuit in early December challenging the Pentagon‘s vaccination mandate. In a statement at the time, Mr. Stitt argued that Mr. Austin has overstepped his constitutional authority.

For his part, the defense secretary has warned that any Guard troops not vaccinated by their service’s respective deadline can’t participate in drills and subsequently won’t be paid.

Legal scholars say the governors face an uphill battle against the Pentagon chief’s mandate.

“The governors are certainly free to request Secretary Austin to withdraw his directive, but the law doesn’t compel him to do so. The fact is that he has the legal authority to require members of the National Guard to meet certain vaccination standards,” said retired Air Force Gen. Charles J. Dunlap Jr., executive director of Duke University’s Center on Law, Ethics and National Security.

“If a governor wants a ‘militia’ force free from all federal requirements, they can establish — and fund — their own state defense force separate from the Guard, but no federal money or equipment would flow to it,” Gen. Dunlap told The Washington Times.

Mr. Stitt’s actions in Oklahoma, meanwhile, have inspired other Republican governors around the country.

Following Mr. Stitt’s assertion that he will not enforce the vaccine mandate on Oklahoma National Guard forces, the governors of Iowa, Alaska, Wyoming, Mississippi and Nebraska have all said they too will not enforce the mandate on forces in their own states.

The group of governors also wrote a collective letter to Mr. Austin, arguing that they retain control of Guard forces unless and until the forces are activated for federal duty.

‘Their pledge to serve’
 
The Republican governors have made a broader case about the potential fallout for America’s armed forces if the vaccine mandate remains in place as currently constructed.

“It’s unconscionable to think the government will go so far as to strip these honorable men and women of the nation’s top duties if they don’t comply,” Iowa Gov. Kim Reynolds said in a statement accompanying the mid-December letter she and the other Republican governors sent to Mr. Austin.

The Pentagon has argued that military readiness — even at the National Guard level — could suffer as a result of unvaccinated personnel.

“As I’ve said before, vaccination of the force will save lives and is essential to our readiness,” Mr. Austin wrote in a November memo laying out the new vaccination policy for National Guard forces.

While governors have a great deal of authority over Guard troops, legal scholars generally agree the authority does not mean Guard troops can be exempted from federal regulations, such as health standards.

Some specialists also argue there is a clear precedent for federal guidelines overriding a governor’s wishes.

“There is no good authority for this muscular conception of a state governor’s commander-in-chief power over the National Guard,” according to Michel Paradis, a senior attorney with the Defense Department’s Military Commissions Defense Organization, and Emily Eslinger, a research fellow for the National Institute of Military Justice.

The two wrote in a recent analysis for the website Lawfare that “governors have made similar arguments [in the past] for residual power over National Guard members of their respective states in the past and lost.”

On the specific question of authority over vaccinations, Mr. Paradis and Ms. Eslinger argued that “federal regulations of the militia supplant any residual commander-in-chief power a governor might retain.”

“If a state governor issues an order contrary to federal law,” they wrote, “that order is unlawful and subordinates follow it in violation of federal law at their peril.”

For more information, visit The Washington Times COVID-19 resource page.

• Ben Wolfgang can be reached at bwolfgang@washingtontimes.com.

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