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Texas joins 6 states challenging Biden’s Nat’l Guard vaccine mandate

Texas Gov. Greg Abbott on June 22, 2020. (Ricardo B. Brazziell/Austin American-Statesman/TNS)
December 17, 2021

On Thursday, Republican Texas Governor Greg Abbott sent a letter to Secretary of Defense Lloyd Austin, requesting the Texas National Guard be exempt from the military-wide COVID-19 vaccine mandate. With his letter, Abbott joined a growing list of state governors requesting their National Guard troops be allowed to continue serving without being required to take the vaccines, as directed by President Joe Biden.

Abbott’s letter to Austin states, “As Governor of Texas, I am the commander-in-chief of this State’s militia. In that capacity, on October 4, 2021, I ordered the Adjutant General of Texas to comply with my Executive Order GA-39. My letter to Major General Tracy R. Norris read as follows: As you know, I issued Executive Order GA-39, which commands that ‘[n]o governmental entity can compel any individual to receive a COVID-19 vaccine.'”

Abbott added that his executive order extends to the Texas National Guard.

“Under this order, General Norris will not punish any guardsman in Texas for choosing not to receive the vaccine,” Abbot said.

Abbott said any Texas National Guardsmen who suffer adverse consequences for refusing the vaccine “will have only President Biden and his Administration to blame.” Abbott also said, “This willingness to hollow out the National Guard is unconscionable in the face of growing global threats and a border crisis created by the Biden Administration.”

Abbott said the Texas government will continue to not enforce the military vaccine mandate and “I will deploy every legal tool available to me” if the federal government attempts to defund the Texas National Guard.

Abbott’s letter comes a day after Republican Governors Mike Dunleavy of Alaska, Kim Reynolds of Iowa, Tate Reeves of Mississippi, Pete Ricketts of Nebraska and Mark Gordon of Wyoming, sent a joint letter to Austin. The letter from the five governors stipulates 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.

The arguments from the five governors are similar to the ones Republican Oklahoma Governor Kevin Stitt has also been arguing for several weeks now.

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 said unvaccinated National Guard troops may be ineligible for federal pay.

The contention from Stitt, Dunleavy, Reynolds, Reeves, and Gordon 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, the five governors 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.”

Oklahoma has already begun a lawsuit against the Biden administration and the DoD, challenging the military vaccine mandate for National Guard troops.