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OK suing Biden, Pentagon to exempt Nat’l Guard from military vaccine mandate

Members of the Oklahoma National Guard assist with COVID-19 vaccinations. (Oklahoma National Guard photo by Sgt. Jordan Sivayavirojna)
December 03, 2021

The State of Oklahoma is suing to exempt its National Guard force from the Pentagon’s COVID-19 vaccine mandate, brought about under President Joe Biden. The lawsuit is the latest in a battle over who has authority over the state’s National Guard force – the federal government, or Republican Gov. Kevin Stitt.

Republican Oklahoma Attorney General John O’Conner announced the lawsuit in a Thursday press release.

O’Conner announced the lawsuit three days after Secretary of Defense Lloyd Austin rejected a request from Stitt to excuse the Oklahoma National Guard from the federal military vaccine requirement. Stitt has argued that the Pentagon does not have ultimate authority over the state’s National Guard force.

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 federal training.

The Pentagon’s position is that National Guard troops mobilized under Title 32 can be mandated to take the vaccines. Stitt maintains that even though 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.

Austin has said troops who are not in compliance with the vaccine mandate could jeopardize their National Guard status, putting at risk their federal pay and benefits.

“This week, Secretary of Defense Lloyd Austin declared his intention to proceed with unconstitutional punishment that individually targets Oklahoma National Guard soldiers and airmen, including withholding their pay,” Stitt said in a Thursday press release. “It is unconscionable that President Biden and his administration are choosing to play politics with military paychecks, especially amid the highest inflation rate in 30 years and so close to the holiday season.”

According to Stitt’s office, more than 1,000 service members from both the Oklahoma Army and Air National Guard components — about 13 percent of the state’s approximately 8,200 troops — have said they won’t get the vaccine altogether.

“Biden’s COVID-19 vaccine mandate ensures that many Oklahoma National Guard members will simply quit instead of getting a vaccine, a situation that will irreparably harm Oklahomans’ safety and security,” O’Conner said Thursday. “These patriots, along with many federal employees, who serve their country and their state are now at risk of being terminated because they do not wish to take the vaccine.”