Gov. Abbott sues Biden administration over vaccine mandate for service members

Abbott accused the Biden administration of violating the Second Militia clause of the Constitution and undermining his commander-in-chief power.


File Photo: Gov. Greg Abbott leads a roundtable discussion on public safety priorities at the Texas Department of Public Safety headquarters in January 2021.

Texas Governor Greg Abbott said Tuesday he has filed suit against the federal government over the Defense Department's vaccine mandate for service members — especially those in the National Guard. Abbott accused the Biden administration of violating the Second Militia clause of the Constitution and undermining his commander-in-chief power.

In a letter addressing Texas adjutant general Tracy Norris, Abbott said the Defense Department can't order troops to get the vaccine unless they are deployed by the federal government. If not, he argued, they are under the control of the governor.

"Unless President Biden federalizes the Texas National Guard in accordance with Title 10 of the U.S. Code, he is not your commander-in-chief under our federal or state Constitutions," Abbott wrote. "And as long as I am your commander-in-chief, I will not tolerate efforts to compel receipt of a COVID-19 vaccine."

According to court documents filed in the U.S. District Court for the Eastern District of Texas, the case "seeks protection from the federal government's unconstitutional action to force Texas, through its governor, to submit to federal orders and impose federally dictated disciplinary action on its National Guardsmen."

The lawsuit states that it's not taking a pro- or anti- vaccine stance, and argues that the mandate will reduce the state's military forces and harm its ability to respond in an emergency.

Oklahoma’s Governor Kevin Stitt also filed a similar lawsuit but a federal judge denied his request for an injunction against the vaccine mandate.

The National Guard is the only U.S. military force that operates across both state and federal responses, including State Active Duty (SAD), Full-Time National Guard Duty (Title 32) and Active Duty (Title 10). With its dual constitutional authority, the National Guard is supposed to bridge the grey area between state and federal jurisdictions. While SAD, Title 32, and Title 10 are different statuses, they provide capabilities that support one another.

Late last year, Defense Secretary Lloyd Austin announced that unvaccinated National Guard members would be banned from drills and training required to maintain their guard status, losing pay, retirement and other federal benefits.

The Pentagon has previously said it has the right to set medical readiness requirements, which include vaccines.

On Tuesday, a federal judge in Texas ruled that the Navy can't discipline 35 sailors who are opposing the vaccine mandate in court. He said the Navy violated the sailors' rights under the First Amendment and the Religious Freedom Restoration Act when it denied all religious exemption requests.

Gov. Abbott faces a tough primary challenge in his 2022 reelection bid, and has been accused of politicizing the Texas National Guard with his state-level border enforcement initiative, called Operation Lone Star.

Less than a week ago, Abbott requested federal aid to fight the surging coronavirus outbreak in the state, including asking for testing sites and medical personnel.

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