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Federal judge rejects OK lawsuit to stop Biden’s Nat’l Guard vaccine mandate

Members of the Oklahoma National Guard assist with COVID-19 vaccinations. (Oklahoma National Guard photo by Sgt. Jordan Sivayavirojna)
December 29, 2021

On Tuesday, a federal judge denied Republican Oklahoma Governor Kevin Stitt’s request for a preliminary injunction to halt the Biden administration’s COVID-19 vaccine mandate for his state’s National Guard troops.

In a 29-page decision, Judge Stephen Friot of the U.S. District Court for Oklahoma’s Western District ruled that the lawsuit brought by Stitt, Attorney General John O’Connor and 16 unnamed individual Oklahoma Air National Guard members “are without merit.”

Friot wrote that the COVID-19 vaccine mandate is just one of nine vaccines that all service members are already required to take and that the COVID-19 vaccine is intended to protect service members from a virus that has killed in two years more Americans “than have been killed in action in all of the wars the United States has ever fought.”

“The court is required to decide the case on the basis of federal law, not common sense,” Friot wrote. “But, either way, the result would be the same.”

Friot also noted that the 16 Oklahoma National Guard troops had not completed the proper process to proceed in the lawsuit anonymously, and although they started that process, he said “in the meantime, the court lacks jurisdiction to grant relief to the unnamed plaintiffs.”

Stitt is one of seven state governors who have challenged the COVID-19 vaccine mandates. One key contention by Stitt — as well as Republican Governors Mike Dunleavy of Alaska, Kim Reynolds of Iowa, Tate Reeves of Mississippi, Pete Ricketts of Nebraska, Greg Abbott of Texas and Mark Gordon of Wyoming — is over what authority the federal military chain of command holds over the National Guard forces of the individual states when those forces are not mobilized under federal authorities.

Stitt has argued that when not Oklahoma National Guard troops are not deployed in a Title 10 federal capacity, he as Oklahoma’s governor retains all the authorities of the commander-in-chief for the Guard force.

Friot wrote that “until such time as a unit of the Guard is ‘federalized'” the governor of that particular state retains commander-in-chief authority over that state’s Guard force.

Friot then wrote that while not “federalized” the governor’s authorities over a state’s National Guard force include “recruiting, training and pressing Guard units into service when necessary within the boundaries of the state.” Friot said even when not “federalized” federal officers, such as the President of the United States, still “have the authority required to ensure that the Guard, as a statutory reserve component of the U.S. armed forces, is ready to be pressed into federal service without delay, and as seamlessly as possible, in case of need.”

“The upshot of all this,” Freid wrote, “Is that, however wide-ranging the command authority of the Governor and the Adjutant General may be within the four corners of their own state (and the court does not presume to define the extent of that authority other than as is strictly necessary for present purposes), it is unmistakably clear that the intent of Congress, as expressed in the text of its enactments, is that the Guard and its members will at all events be prepared, conformably to federal military standards, to be ordered into federal service, deploying alongside members of the active duty Army and Air Force, on little or no notice, anywhere in the world–which is exactly what the Oklahoma Guard and its members have done, with great distinction, on dozens of occasions.”

The rejection of Stitt’s motion for a preliminary injunction to block the vaccine mandate comes weeks after the Dec. 2 deadline for all Air Force Reserve components, including the Air National Guard, to complete the vaccination process.

While Friot denied Stitt’s motion, he did call for the defendants to provide an additional grace period for Oklahoma’s Air National Guard troops to comply with the vaccine mandate.

“What the court cannot ignore is the potentially devastating effect of involuntary separation (either as a result of direct action or as a result of continuing loss of pay), especially where, as appears to be the case here, the individual non-compliant Guard members did not have the benefit of well-informed leadership at the highest level of the Oklahoma Guard,” Friot wrote. “The court strongly urges the defendants to give every consideration to providing a brief grace period–to facilitate prompt compliance with the vaccination mandate–before directly or indirectly taking action which would end the military careers of any Oklahoma Guard members.”