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Wednesday, December 29, 2021

Vaccine Mandate for National Guard

Jordan Williams at The Hill:
An Oklahoma federal judge on Tuesday denied an attempt from the state to block the Department of Defense’s coronavirus vaccine mandate for National Guard members.

In a 29-page ruling, U.S. District Judge Stephen Friot denied a motion from Oklahoma Gov. Kevin Stitt (R) and Attorney General John O’Connor to preliminarily enjoin the mandate, saying the plaintiffs’ claims were without merit.

“The court is required to decide this case on the basis of federal law, not common sense. But, either way, the result would be the same,” Friot wrote. “The claims asserted by the Governor and his co-plaintiffs are without merit.”

From the ruling:

The constitutional allocation of responsibility for Guard matters has been fleshed out by Congress. The beginning point, understandably relied upon by the defendants, is 32 U.S.C. § 110: “The President shall prescribe regulations, and issue orders, necessary to organize, discipline, and govern the National Guard.” In turn, the Service Secretaries (as relevant here, the Secretary of the Army and the Secretary of the Air Force) are empowered to “prescribe such regulations as the Secretary considers necessary to carry out provisions of law relating to the reserve components under the Secretary’s jurisdiction.” 10 U.S.C. § 10202(a).
Apropos of the constitutional grant of power to Congress to provide for “organizing” and “disciplining” the Militia, Congress has directed that “[t]he discipline, including training, of the Army National Guard shall conform to that of the Army. The discipline, including training, of the Air National Guard shall conform to that of the Air Force.” 32 U.S.C. § 501. If the Guard fails to comply with federal standards, the President is empowered to cut off its funding: “If, within a time fixed by the President, a State fails to comply with a requirement of this title, or a regulation prescribed under this title, the National Guard of that State is barred, in whole or in part, as the President may prescribe, from receiving money or any other aid, benefit, or privilege authorized by law.” 32 U.S.C. § 108. If a state should find federal standards governing the National Guard to be too tight a fit, the state is free to establish (and pay for) its own, independent version. 32 U.S.C. § 109(c). Oklahoma has not done so.
The upshot of all this 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, Case 5:21-cv-01136-F Document 41 Filed 12/28/21 Page 19 of 29 20 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