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5 governors call on Pentagon to reverse Nat’l Guard vaccine mandate

Spc. James Alston holds a dosage of COVID-19 vaccine at the Harrison County Health Department in Gulfport, Miss., Jan. 5, 2021. (U.S. National Guard photo by A. Danielle Thomas)
December 15, 2021

Five states governors sent a letter to Secretary of Defense Lloyd Austin on Tuesday requesting that he withdraw the portion of his military-wide COVID-19 vaccine mandate requiring National Guard members serving on state-level duty to be vaccinated.

Republican Governors Mike Dunleavy of Alaska, Kim Reynolds of Iowa, Tate Reeves of Mississippi, Pete Ricketts of Nebraska and Mark Gordon of Wyoming, joined on to the letter to Austin. The letter argues that the federal government can set readiness standards for states’ National Guard forces while they are activated under Title 10 federal status, but not while they are activated in a Title 32 capacity.

“We write to request you withdraw part of your and the Service Secretaries’ directives to National Guard members in their Title 32 duty status concerning the COVID-19 vaccine,” the governors’ letter reads. “We acknowledge your right to establish readiness standards for the National Guard for activation into a Title 10 status. However, directives dictating whether training in a Title 32 status can occur, setting punishment requirements for refusing to be COVID-19 vaccinated, and requiring separation from each state National Guard if unvaccinated are beyond your constitutional and statutory authority.”

The letter from the five Republican governors comes after Republican Oklahoma Gov. Kevin Stitt already requested Austin withdraw the vaccine mandate for his state’s National Guard troops. Austin rejected that request in November and Stitt responded by suing President Joe Biden’s administration and the Department of Defense, challenging the rule.

National Guard troops can be mobilized either at the state level or at the federal level, under Title 10 of the U.S. Code. Under Title 10, National Guard troops fall under the command of the federal government. National Guard troops can also be called up under the authority of the states, but with funding from the federal government through Title 32.

Title 32 mobilizations typically involve a state governor calling up their state’s National Guard troops to respond to a localized need, such as disaster relief, but at the direction of a federal request. Title 32 is also used to mobilize troops for training.

The Pentagon’s position has been that National Guard troops mobilized under Title 32 can be mandated to take the vaccines, even if though they are technically answering to state-level leaders. The Biden DoD has indicated it may withhold pay for National Guard troops activated under Title 32 if they are not vaccinated.

The contention from Stitt and the five other Republican governors is that while National Guard troops receive federal funding under Title 32, they remain under the state’s authority and therefore should not be made to follow an order not given by their current commander-in-chief.

In their letter, Dunleavy, Reynolds, Reeves, and Gordon wrote, “The U. S. Supreme Court has for decades affirmed in cases, such as in Perpich v. Department of Defense, 496 U.S. 334 (1990), that the National Guard is under the command and control of the Governor of each state unless those members are called to active service under Title 10.”

The letter also notes “Congress has required National Guard members attend unit training assemblies (drills) under 32 U.S.C. §502(f), and the statute does not say ‘unless they fail to meet all readiness standards,'” indicating meeting all readiness standards, including vaccinations, may not be a prerequisite to participate in training under Title 32 activation.